P906/20 List of Authorities for the Petitioner in Respect Of

Court Ref: P906/20

LIST OF AUTHORITIES FOR THE PETITIONER IN RESPECT OF THE SINGLE BILLS HEARING

in the

PETITION

THE RIGHT HONOURABLE W. JAMES WOLFFE QC, HER MAJESTY’S ADVOCATE, Crown Office, 25 Chambers Street, Edinburgh, EH1 1LA PETITIONER

for

an order under section 100 of the Courts Reform (Scotland) Act 2014

Statutory provisions

1. Vexatious Actions (Scotland) Act 1898 2. Senior Courts Act 1981, section 42 3. Courts Reform (Scotland) Act 2014, sections 100-101

Court rules

4. Chapter 38 of the Rules of the Court of Session

Cases

5. Lord Advocate v Cooney 1984 SLT 434 at 434 6. Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 7. Attorney General v Barker [2000] 2 WLUK 602, §19 8. Attorney General v Covey [2001] EWCA Civ 254, §56 9. Attorney-General v Collier [2001] NZAR 137, §36 10. Attorney General v Purvis [2003] EWHC 3190 (Admin), §29-§30 11. HM Advocate v Frost 2007 SC 215, §30 12. Lord Advocate v McNamara 2009 SC 598, §§8, 31-33, 36, 38, 40 13. Sans Souci Limited v VRL Services Limited [2012] UKPC 6, §13 14. Lord Advocate v Duffy [2013] CSIH 50, §37 15. Lord Advocate v Aslam [2019] CSIH 17, §§7-8, 10 16. Attorney General v Gayle-Childs [2020] EWHC 3811 (QB), §§27-28

1 Vexatious Actions (Scotland) Act 1898 c. 35 2

Vexatious Actions (Scotland) Act 1898 c. 35 Preamble

Superseded

Version 1 of 2

12 August 1898 - 27 November 2016

Subjects Civil procedure An Act to prevent vexatious Legal proceedings in Scotland.

[12th August 1898]

Table of Amendments

2 Preamble Repealed by Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015/700, Sch. 1 para. 1 November 28, 2016 being the date on which 2014 asp.8 comes into force

1 see commencement below

Commencement

Preamble August 12, 1898 (Royal Assent)

Extent

Preamble England, Wales, Scotland

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland

Superseded

Version 1 of 2

Date not available - 27 November 2016

Subjects Civil procedure

Keywords Commencement of proceedings; Court of Session; Jurisdiction; Permission; Vexatious proceedings 1. Power of Court of Session to prohibit institution of action without leave.

It shall be lawful for the Lord Advocate to apply to either Division of the Inner House of the Court of Session for an order under this Act, and if he satisfies the Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court, and whether against the same person or against different persons, the Court may order that no legal proceedings shall be instituted by that person in the Court of Session or any other court unless he obtains the leave of [a judge sitting in the Outer House]1 on the Bills in the Court of Session, having satisfied the [judge]2 that such legal proceeding is not vexatious, and that there is prima facie ground for such proceeding. A copy of such order shall be published in the Edinburgh Gazette.

Notes

1 Words substituted by virtue of Administration of Justice (Scotland) Act 1933 (c. 41), s. 3(1) 2 Words substituted by virtue of Administration of Justice (Scotland) Act 1933 (c. 41), s. 3(1)

Table of Amendments

2 s. 1 Repealed by Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015/700, Sch. 1 para. 1 November 28, 2016 being the date on which 2014 asp.8 comes into force

Repealed by Courts Reform (Scotland) Act 2014 asp 18 (Scottish Act), Sch. 5(7) para. 27 November 28, 2016: repeal has effect subject to savings specified in SSI 2016/291 art.3(4)

1 Incorporates amendments made up to February 1, 1991 see commencement below

Commencement s. 1 August 12, 1898

Extent s. 1 England, Wales, Scotland

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland

s. 1A

Superseded

Version 1 of 2

Date not available - 27 November 2016

Subjects Civil procedure

Keywords Commencement of proceedings; Court of Session; Finality; Judgments and orders; Jurisdiction; Permission [ 1A.

A decision of the Lord Ordinary to refuse leave, under section 1 of this Act, to institute legal proceedings shall be final.

Notes

1 S. 1A inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55), s. 19

Table of Amendments

2 s. 1A Repealed by Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015/700, Sch. 1 para. 1 November 28, 2016 being the date on which 2014 asp.8 comes into force

Repealed by Courts Reform (Scotland) Act 2014 asp 18 (Scottish Act), Sch. 5(7) para. 27 November 28, 2016: repeal has effect subject to savings specified in SSI 2016/291 art.3(4)

1 Incorporates amendments made up to February 1, 1991 see commencement below

Commencement s. 1A Date not available

Extent s. 1A England, Wales, Scotland

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland

s. 2 Short title.

Superseded

Version 1 of 2

12 August 1898 - 27 November 2016

Subjects Civil procedure

Keywords Scotland; Short titles; Vexatious proceedings 2. Short title.

This Act may be cited as the Vexatious Actions (Scotland) Act 1898.

Table of Amendments

2 s. 2 Repealed by Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015/700, Sch. 1 para. 1 November 28, 2016 being the date on which 2014 asp.8 comes into force

Repealed by Courts Reform (Scotland) Act 2014 asp 18 (Scottish Act), Sch. 5(7) para. 27 November 28, 2016: repeal has effect subject to savings specified in SSI 2016/291 art.3(4)

1 see commencement below

Commencement s. 2 August 12, 1898

Extent s. 2 England, Wales, Scotland

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland

Senior Courts Act 1981 c. 54 s. 42 Restriction of vexatious legal proceedings.

Law In Force

Version 2 of 2

22 April 2014 - Present

Subjects Administration of justice; Civil procedure; Criminal procedure; Family law

Keywords All proceedings orders; Civil restraint orders; Criminal proceedings orders; Family Court; High Court; Jurisdiction; Vexatious litigants 42.— Restriction of vexatious legal proceedings.

(1) If, on an application made 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 [civil]1 proceedings, whether in the High Court [ or the family court]2 or any inferior court, and whether against the same person or against different persons; or

(b) made vexatious applications in any [civil ]3 proceedings, whether in the High Court [ or the family court]2 or any inferior court, and whether instituted by him or another,

[ or

]4 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.]5

[

(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;

“criminal proceedings order” means an order that—

(a) no information shall be laid before a justice of the peace by the person against whom the order is made without the leave of the High Court; and

(b) no application for leave to prefer a bill of indictment shall be made by him without the leave of the High Court; and

“all proceedings order” means an order which has the combined effect of the two other orders.

(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.

(3) Leave for the institution or continuance of, or for the making of an application in, any [civil ]7 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.

[

(3A) Leave for the laying of an information or for an application for leave to prefer a bill of indictment 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 institution of the prosecution is not an abuse of the criminal process and that there are reasonable grounds for the institution of the prosecution by the applicant.

(4) No appeal shall lie from a decision of the High Court refusing leave [required by virtue of this section ]9.

(5) A copy of any order made under subsection (1) shall be published in the London Gazette.

Notes

1 Word substituted by Prosecution of Offences Act 1985 (c.23), s. 24(2)(a) 2 Words inserted by Crime and Courts Act 2013 c. 22 Sch.10(2) para.60 (April 22, 2014: insertion has effect as SI 2014/954 subject to savings and transitional provisions specified in 2013 c.22 s.15 and Sch.8 and transitional provision specified in SI 2014/954 arts 2(d) and 3) 3 Word substituted by Prosecution of Offences Act 1985 (c.23), s. 24(2)(a) 4 S.42(1)(c) inserted by Prosecution of Offences Act 1985 (c.23), s.24(2)(b) 5 S. 42(b(i)(ii)(iii) substituted by Prosecution of Offences Act 1985 (c.23), s. 24(2)(c) 6 S.42 (1A) is inserted by Prosecution of Offences Act 1985 (c.23), s. 24(3) 7 Word substituted by Prosecution of Offences Act 1985 (c.23), s. 24(4) 8 S. 42 (3A) inserted by Prosecution of Offences Act 1985 (c.23), s. 24(5) 9 Words substituted by Prosecution of Offences Act 1985 (c.23), s. 24(6)

Part II JURISDICTION > Chapter 002 THE HIGH COURT > Powers > s. 42 Restriction of vexatious legal proceedings.

Table of Amendments

2 Pt II c. 002 s. 42(1)(a)-(b) Words inserted by Crime and Courts Act 2013 c. 22, Sch. 10(2) para. 60 April 22, 2014: insertion has effect as SI 2014/954 subject to savings and transitional provisions specified in 2013 c.22 s.15 and Sch.8 and transitional provision specified in SI 2014/954 arts 2(d) and 3

1 Incorporates amendments made up to April 1, 1991 see commencement below

Commencement

Pt II c. 002 s. 42 January 1, 1982 1981 c. 54 Pt VI s. 153(2)

Extent

Pt II c. 002 s. 42(1)-(5) England, Wales

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland

Courts Reform (Scotland) Act 2014 asp 18 (Scottish Act) s. 100 Vexatious litigation orders

Law In Force

Version 1 of 1

28 November 2016 - Present

Subjects Civil procedure

Keywords Civil proceedings; Court of Session; Orders; Scotland; Vexatious litigants 100 Vexatious litigation orders

(1) The Inner House may, on the application of the Lord Advocate, make a vexatious litigation order in relation to a person (a “vexatious litigant”).

(2) A vexatious litigation order is an order which has either or both of the following effects—

(a) the vexatious litigant may institute civil proceedings only with the permission of a judge of the Outer House,

(b) the vexatious litigant may take a specified step in specified ongoing civil proceedings only with such permission.

(3) In subsection (2)(b)—

(a) “specified ongoing civil proceedings” means civil proceedings which—

(i) were instituted by the vexatious litigant before the order was made, and

(ii) are specified in the order,

(b) “specified step” means a step specified in the order.

(4) A vexatious litigation order has effect—

(a) during such period as is specified in the order, or

(b) if no period is so specified, indefinitely.

(5) In this section and section 101—

(a) “the Inner House” means the Inner House of the Court of Session,

(b) “the Outer House” means the Outer House of the Court of Session,

(d) “vexatious litigation order” means an order made under subsection (1).

Part 3 CIVIL PROCEDURE > Chapter 6 VEXATIOUS PROCEEDINGS > s. 100 Vexatious litigation orders

Table of Amendments

1 see commencement below

Commencement

Pt 3 c. 6 s. 100(1)-(5)(d) November 28, 2016 SSI 2016/291 art. 2, Sch. 1 para. 1

Extent

Pt 3 c. 6 s. 100-(5)(d) Scotland

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland

Law In Force

Version 1 of 1

28 November 2016 - Present

Subjects Civil procedure

Keywords Civil proceedings; Court of Session; Orders; Scotland; Vexatious litigants 101 Vexatious litigation orders: further provision

(1) The Inner House may make a vexatious litigation order in relation to a person only if satisfied that the person has habitually and persistently, without any reasonable ground for doing so—

(a) instituted vexatious civil proceedings, or

(b) made vexatious applications to the court in the course of civil proceedings (whether or not instituted by the person).

(2) For the purpose of subsection (1), it does not matter whether the proceedings—

(a) were instituted in Scotland or elsewhere,

(b) involved the same parties or different parties.

(3) A copy of a vexatious litigation order must be published in the Edinburgh Gazette.

(4) A judge of the Outer House may grant permission to a vexatious litigant to institute civil proceedings or, as the case may be, to take a step in such proceedings only if satisfied that there is a reasonable ground for the proceedings or the taking of the step.

(5) The decision of the judge to refuse to grant permission under subsection (4) is final.

(6) Subsection (7) applies in relation to civil proceedings instituted in any court by a vexatious litigant before the Inner House makes a vexatious litigation order in relation to the vexatious litigant.

(7) The court may make such order as it sees fit in consequence of the vexatious litigation order.

(8) In subsection (7), “the court” means—

(a) the court which is dealing with the proceedings,

(b) in the case of proceedings in the sheriff court, the sheriff.

Part 3 CIVIL PROCEDURE > Chapter 6 VEXATIOUS PROCEEDINGS > s. 101 Vexatious litigation orders: further provision

Table of Amendments

1 see commencement below

Commencement

Pt 3 c. 6 s. 101(1)-(8)(b) November 28, 2016 SSI 2016/291 art. 2, Sch. 1 para. 1

Extent

Pt 3 c. 6 s. 101-(8)(b) Scotland

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland

CHAPTER 38

RECLAIMING

Introduction

38.1.—(1) This Chapter applies subject to any other provision in these Rules or any enactment.

(2) Any party to a cause who is dissatisfied with an interlocutor pronounced by—

(a) the Lord Ordinary; (b) the Lord Ordinary in Exchequer Causes; or (c) the vacation judge, and who seeks to submit that interlocutor to review by the Inner House shall do so by reclaiming within the reclaiming days in accordance with the provisions of this Chapter.

(3) In this Chapter, “reclaiming days” means the days within which an interlocutor may be reclaimed against.

Reclaiming days

38.2.—(1) An interlocutor disposing, either by itself or taken along with a previous interlocutor, of—

(a) the whole subject matter of the cause; or (b) the whole merits of the cause whether or not the question of expenses is reserved or not disposed of, may be reclaimed against, without leave, within 21 days after the date on which the interlocutor was pronounced.

(2) Where an interlocutor which reserves or does not dispose of the question of expenses is the subject of a reclaiming motion under paragraph (1)(b), any party to the cause who seeks an order for expenses before the disposal of the reclaiming motion shall apply by motion to the Lord Ordinary for such an order within 14 days of the date of enrolment of that reclaiming motion.

(3) An interlocutor disposing of the merits of the action and making an award of provisional damages under section 12(2)(a) of the Administration of Justice Act 1982(a) may be reclaimed against, without leave, within 21 days after the date on which the interlocutor was pronounced.

(4) An interlocutor mentioned in paragraph (5) may be reclaimed against, without leave, within 14 days after the date on which the interlocutor was pronounced.

(5) Those interlocutors are—

(a) an interlocutor disposing of part of the merits of a cause; (b) an interlocutor allowing or refusing proof, proof before answer or jury trial (but, in the case of refusal, without disposing of the whole merits of the cause); (c) an interlocutor limiting the mode of proof; (d) an interlocutor adjusting issues for jury trial; (e) an interlocutor granting, refusing, recalling, or refusing to recall, interim interdict or interim liberation; (f) an interlocutor in relation to an exclusion order under section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981(b); (g) an interlocutor granting or recalling a sist of execution or procedure;

(a) 1982 c.53; section 12 was modified by the Consumer Protection Act 1987 (c.43), sections 6(1)(d), 41(2) and 47(1) and (2) (b) 1981 c.59; section 4 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), sections 13(5) and 60(6). 17

(h) an interlocutor loosing, restricting or recalling an arrestment or recalling in whole or in part an inhibition used on the dependence of an action or refusing to loose, restrict or recall such an arrestment or inhibition; (i) an interlocutor granting authority to move an arrested vessel or cargo; (j) an interlocutor deciding (other than in a summary trial) that a reference to the European Court should be made.

(6) An interlocutor (other than a decree in absence or an interlocutor mentioned in paragraph (2), (3) or (5) of this rule) may be reclaimed against, with leave, within 14 days after the date on which the interlocutor was pronounced.

Leave to reclaim etc. in certain cases

38.3.—(1) An interlocutor granting or refusing a motion for summary decree may be reclaimed against only with the leave of the Lord Ordinary within 14 days after the date on which the interlocutor was pronounced.

(2) In the application of section 103(3) of the Debtors (Scotland) Act 1987 (appeals on questions of law arising from making, variation or recall of time to pay directions)(a)—

(a) leave to appeal shall be sought within 14 days after the date of the decision of the Lord Ordinary appealed against; and (b) an appeal shall be made by motion to the Inner House within 14 days after the date on which leave was granted.

(3) An interlocutor, other than an interlocutor—

(a) deciding whether to give permission (including the giving of permission either subject to conditions or only on particular grounds) for group proceedings to be brought under Chapter 26A (group procedure); (b) deciding whether to grant permission for the application to proceed under section 27B(1) of the Act of 1988(b) or an interlocutor determining the application, pronounced under Chapter 58 (applications for judicial review)(c), may be reclaimed against only with the leave of the Lord Ordinary within 14 days after the date on which the interlocutor was pronounced.

(4) The decision of the Lord Ordinary on a note of objection to the report of the Auditor under rule 42.4(d) may be reclaimed against only with the leave of the Lord Ordinary within 7 days after the date on which the decision was made.

(5) An interlocutor granting or refusing a motion under rule 47.10(1) (appointing action to be a commercial action)(e) may be reclaimed against only with the leave of the commercial judge within 14 days after the date on which the interlocutor was pronounced.

(6) An interlocutor pronounced on the Commercial Roll, other than an interlocutor which makes such disposal as is mentioned in rule 38.2(1), may be reclaimed against only with the leave of the commercial judge within 14 days after the date on which the interlocutor was pronounced.

Applications for leave to reclaim

38.4.—(1) An application for leave to reclaim against an interlocutor shall be made by motion.

(2) A motion under paragraph (1) shall be brought—

(a) 1987 c.18. (b) Section 27B was inserted by the Courts Reform (Scotland) Act 2014 (asp 18), section 89 and amended by S.I. 2015/700. (c) Chapter 58 was substituted by S.S.I. 2015/228 and amended by S.S.I. 2017/200. (d) Rule 42.4 was amended by S.I. 1996/1756. (e) Rule 47.10 was substituted by S.I. 1994/2310. 18

(a) before the Lord Ordinary who pronounced the interlocutor; (b) where that Lord Ordinary is, for whatever reason, unavailable, before another Lord Ordinary; or (c) before the vacation judge.

(3) Where a motion under paragraph (1) is brought before a judge under paragraph (2)(b) or (c), that judge shall—

(a) continue the motion until the Lord Ordinary who pronounced the interlocutor is available; or (b) where the matter is of such urgency that a continuation would not be appropriate, grant or refuse leave, as the case may be.

(4) Any period during which a motion under paragraph (1) is continued by virtue of an order under paragraph (3)(a) shall not be taken into account in calculating the reclaiming days under rule 38.2(6) (reclaiming days and leave) or rule 38.3 (leave to reclaim etc. in certain cases).

(5) In granting leave to reclaim, the Lord Ordinary may impose such conditions, if any, as he thinks fit.

(6) The decision of the Lord Ordinary or the vacation judge to grant or refuse leave to reclaim shall be final and not subject to review.

(7) Leave to reclaim against an interlocutor shall not excuse obedience to or implement of the interlocutor unless by order of the Lord Ordinary, a procedural judge or the vacation judge.

Method of reclaiming

38.5.—(1) A party who seeks to reclaim against an interlocutor shall mark a reclaiming motion by enrolling a motion for review in Form 38.5 before the expiry of the reclaiming days.

(2) On enrolling a motion for review under paragraph (1), the reclaimer shall lodge a reclaiming print in the form of a record which shall contain—

(a) the whole pleadings and interlocutors in the cause; (b) where the reclaiming motion is directed at the refusal of the Lord Ordinary to allow the pleadings to be amended in terms of a minute of amendment and answers, the text of such minute and answers; and (c) where available, the opinion of the Lord Ordinary.

(3) A party who reclaims against an interlocutor adjusting issues for jury trial shall, on enrolling the motion for review—

(a) lodge in process the issue or counter-issue proposed by him showing the amendment to the issues, as adjusted, sought to be made; and (b) send a copy of the issue or counter-issue, as the case may be, to every other party.

Effect of reclaiming

38.6.—(1) Subject to paragraph (2), a reclaiming motion shall have the effect of submitting to the review of the Inner House all previous interlocutors of the Lord Ordinary or any interlocutor of the Lord Ordinary in a motion under rule 38.2(2), not only at the instance of the party reclaiming but also at the instance of any other party who appeared in the cause, and without the necessity of any counter- reclaiming motion.

(2) Where an interlocutor, either by itself or taken along with a previous interlocutor, has disposed of the whole merits of the cause, a reclaiming motion against a subsequent interlocutor dealing with expenses shall have the effect of submitting to review only that interlocutor and any other interlocutor so far as it deals with expenses.

(3) After a reclaiming motion has been enrolled, the reclaimer shall not be at liberty to withdraw it without the consent of the other parties who have appeared in the cause; and if he does not insist on the reclaiming motion, any other party may do so in the same way as if the motion had been enrolled at his instance.

(4) An unopposed motion by a party to refuse a reclaiming motion shall be treated as if all parties consented to it.

(5) Where an interlocutor contains an award of residence, contact or aliment, the marking of a reclaiming motion shall not excuse obedience to or implement of the award of residence, contact or aliment, as the case may be, unless by order of the court.

Effect of extracted interlocutor

38.7. Review by the Inner House of an interlocutor shall not be prevented by reason only that extract has been issued before the expiry of the reclaiming days.

Appeals treated as reclaiming motions

38.8. In respect of the following appeals, the rules in this Chapter shall apply to those appeals as they apply to reclaiming—

(a) an appeal from a decision of the Lord Ordinary under section 6 of and Article 37 or 41 of the convention in Schedule 1 or 3C to, the Civil Jurisdiction and Judgments Act 1982 (appeals in relation to decisions on enforcement)(a); and (b) an appeal from a decision of the Lord Ordinary under section 6A of the Civil Jurisdiction and Judgments Act 1982 and Article 44 and Annex IV to the Lugano Convention, as defined in rule 62.26(2) (application and interpretation of Part V of Chapter 62(b) of these Rules); and (c) an appeal from a decision of the Lord Ordinary under section 103(3) of the Debtors (Scotland) Act 1987 (appeals on questions of law)(c). (d) an appeal from a decision of the Lord Ordinary concerning permission to proceed in petitions for judicial review under section 27D of the Act of 1988 (appeal following oral hearings).

Reclaiming against decree by default

38.9.—(1) Where decree by default has been granted against a party in respect of his failure to lodge a step of process or other document, a motion for review by that party of the interlocutor granting such decree shall be refused unless the document is lodged on or before the date on which the motion is enrolled.

(2) A decree by default may, if reclaimed against, be recalled on such conditions, if any, as to expenses or otherwise as the court thinks fit.

Reclaiming out of time

38.10.—(1) In a case of mistake or inadvertence, a procedural judge may, on an application made in accordance with paragraph (2), allow a motion for review to be received outwith the reclaiming days and to proceed out of time on such conditions as to expenses or otherwise as the judge thinks fit.

(2) An application under paragraph (1) shall be made by motion included in the motion for review made under rule 38.5(1).

(a) 1982 c.27. Section 6 was amended by the Civil Jurisdiction and Judgments Act 1991 (c.12), Schedule 2, paragraph 3(b). Schedule 1 was substituted by S.I. 1990/2591 and Schedule 3C was inserted by section 1(3) of the Act of 1991. (b) Section 6A of the Civil Jurisdiction and Judgments Act 1982 was inserted by regulation 7(3) of the Civil Jurisdiction and Judgments Regulations 2009 (S.I. 2009/3131). The definition of “the Lugano Convention” was inserted into rule 62.26(2) by S.S.I. 2009/450. (c) 1987 c.18. 20

Urgent disposal of reclaiming motion

38.11.—(1) Where the reclaimer seeks urgent disposal of a reclaiming motion, he shall include in his motion under rule 38.5(1) either the words “and for urgent disposal on the Summar Roll” or the words “and for urgent disposal in the Single Bills”.

(2) Where a respondent seeks urgent disposal of a reclaiming motion, he shall, within the period allowed for opposing the motion, endorse on the motion of the reclaimer under rule 38.5(1), or send by post or facsimile transmission a notice of opposition in Form 23.4 including the words “The respondent (name) seeks urgent disposal on the Summar Roll” or the words “The respondent (name) seeks urgent disposal in the Single Bills”, as the case may be.

(3) The entry in the rolls in respect of the motion for urgent disposal shall be starred; and the motion shall call before a procedural judge.

(4) At the hearing of the motion, the parties shall provide the procedural judge with an assessment of the likely duration of the hearing to determine the reclaiming motion.

(5) The procedural judge may—

(a) grant the motion for urgent disposal and either appoint the reclaiming motion to the Summar Roll for a hearing or direct that the reclaiming motion be heard in the Single Bills; or (b) refuse the motion for urgent disposal.

(6) Where the procedural judge grants the motion for urgent disposal, he may make such order as to the future timetabling of, and procedure in, the reclaiming motion as he thinks fit.

(7) Rules 38.12 to 38.16 shall apply to a reclaiming motion in respect of which the procedural judge has granted a motion for urgent disposal only to the extent that he so directs.

Required application of certain reclaiming motions for urgent disposal

38.11A. Where a party reclaims against an interlocutor in relation to an order under section 11(1) of the Children (Scotland) Act 1995, the reclaimer shall seek urgent disposal of the reclaiming motion under rule 38.11(1).

Objections to the competency of reclaiming

38.12.—(1) Any party other than the reclaimer may object to the competency of a reclaiming motion by—

(a) lodging in process; and (b) serving on the reclaimer, a note of objection in Form 38.12.

(2) Where the Deputy Principal Clerk considers that a reclaiming motion may be incompetent he may (whether or not any party has lodged and served a note of objection under paragraph (1)) refer the question of competency to a procedural judge.

(3) Where the Deputy Principal Clerk refers a question of competency, he shall intimate to the parties the grounds on which he considers that question of competency arises.

(4) A note of objection may be lodged, and the Deputy Principal Clerk may refer a question of competency, only in the period of 14 days after the date on which the reclaiming motion was marked.

(5) Where a note of objection is lodged, or the Deputy Principal Clerk has referred a question of competency, the Keeper of the Rolls shall—

(a) allocate a diet for a hearing before a procedural judge; and (b) intimate the date and time of that diet to the parties.

(6) Each party shall, within the period of 14 days after the date on which a note of objection is lodged or a question of competency is referred by the Deputy Principal Clerk—

(a) lodge in process; and (b) serve on the other party, a note of argument giving fair notice of the submissions which the party intends to make as to competency.

(7) At the hearing allocated under paragraph (5), the procedural judge may—

(a) refuse the reclaiming motion as incompetent; (b) direct that the reclaiming motion is to proceed as if the note of objection had not been lodged or the question not been referred, whether under reservation of the question of competency or having found the reclaiming motion to be competent; or (c) refer the question of competency to a bench of three or more judges; and he may make such order as to expenses or otherwise as he thinks fit.

(8) Where a procedural judge refers a question of competency under paragraph (7)(c), the cause shall be put out for a hearing in the Single Bills before a Division of the Inner House comprising three or more judges.

(9) At the hearing in the Single Bills arranged under paragraph (8), the Inner House may—

(a) dispose of the objection to competency; (b) appoint the cause to the Summar Roll for a hearing on the objection; (c) reserve the objection until grounds of appeal have been lodged and order such grounds to be lodged; (d) reserve the objection for hearing with the merits.

Timetable in reclaiming motion

38.13.—(1) The Keeper of the Rolls shall—

(a) issue a timetable in Form 38.13, calculated by reference to such periods as are specified in this Chapter and such other periods as may be specified from time to time by the Lord President, stating the date by which the parties shall comply with the procedural steps listed in paragraph (2) and the date and time of the hearing allocated in terms of subparagraph (b) of this paragraph; and (b) allocate a diet for a procedural hearing in relation to the reclaiming motion, to follow on completion of the procedural steps listed in paragraph (2).

(2) The procedural steps are—

(a) the lodging of grounds of appeal and answers; (b) the lodging of any appendices to the reclaiming print or, as the case may be, the giving of intimation that the reclaimer does not intend to lodge any appendices; (c) the lodging of notes of argument; and (d) the lodging of estimates of the length of any hearing on the Summar Roll or in the Single Bills which is required to dispose of the reclaiming motion.

(3) The Keeper of the Rolls shall take the steps mentioned in paragraph (1)—

(a) where no note of objection has been lodged and no question of competency has been referred by the Deputy Principal Clerk within the period mentioned in rule 38.12(4), within 7 days of the expiry of that period; 22

(b) where a procedural judge has made a direction under rule 38.12(7)(b), within 7 days after the date that direction was made; or (c) where a question of competency has been referred to a bench of three or more judges and— (i) an interlocutor has been pronounced sustaining the competency of the reclaiming motion under rule 38.12(9)(a) or following a Summar Roll hearing under rule 38.12(9)(b), or (ii) an interlocutor has been pronounced under rule 38.12(9)(c) or (d), within 7 days after the date of that interlocutor.

Sist or variation of timetable in reclaiming motion

38.14.—(1) A reclaiming motion may be sisted or the timetable may be varied on the application by motion of any party.

(2) An application under paragraph (1) shall be—

(a) placed before a procedural judge; and (b) granted only on special cause shown.

(3) The procedural judge before whom an application under paragraph (1) is placed may—

(a) determine the application; (b) refer the application to a bench of three or more judges; or (c) make such other order as he thinks fit to secure the expeditious disposal of the reclaiming motion.

(4) Where the timetable is varied, the Keeper of the Rolls may —

(a) discharge the procedural hearing fixed under rule 38.13(1)(b); (b) fix a date for a procedural hearing; and (c) issue a revised timetable in Form 38.13.

(5) Upon recall of a sist, the Keeper of the Rolls may —

(a) fix a date for a procedural hearing; and (b) issue a revised timetable in Form 38.13.

Failure to comply with timetable in reclaiming motion

38.15.—(1) Where a party fails to comply with the timetable, the Keeper may, whether on the motion of a party or otherwise, put the reclaiming motion out for a hearing before a procedural judge.

(2) At a hearing under paragraph (1), the procedural judge may—

(a) in any case where the reclaimer or a respondent fails to comply with the timetable, make such order as he thinks fit to secure the expeditious disposal of the reclaiming motion; (b) in particular, where the reclaimer fails to comply with the timetable, refuse the reclaiming motion; or (c) in particular, where a sole respondent fails or all respondents fail to comply with the timetable, grant the reclaiming motion.

Procedural hearing in reclaiming motion

38.16.—(1) At the procedural hearing fixed under rules 38.13(1)(b) or 38.14(4)(b) or (5)(a), the procedural judge shall ascertain, so far as reasonably practicable, the state of preparation of the parties.

(2) The procedural judge may—

(a) appoint the reclaiming motion to the Summar Roll for a hearing and allocate a date and time for that hearing; (b) appoint the reclaiming motion to the Single Bills for a hearing and allocate a date and time for that hearing; or (c) make such other order as he thinks fit to secure the expeditious disposal of the reclaiming motion.

(3) Where this paragraph applies the procedural judge is to make an order under paragraph (2)(c) appointing the reclaiming motion to be determined in chambers without appearance unless satisfied that cause exists for making some other order.

(4) Paragraph (3) applies where—

(a) the interlocutor reclaimed against is an interlocutor disposing of an application for a protective expenses order under Chapter 58A of these Rules; and (b) the grounds of appeal do not seek to submit to the review of the Inner House any other interlocutor, other than a subsequent interlocutor dealing with expenses.

Amendment of pleadings in reclaiming motion

38.17.—(1) Where, after a reclaiming motion has been marked, any party applies by motion to have the pleadings amended in terms of a minute of amendment and answers, he shall apply for a direction as to further procedure.

(2) Where it appears that the amendment makes a material change to the pleadings, the Inner House may recall the interlocutor of the Lord Ordinary reclaimed against and remit the cause back to the Lord Ordinary for a further hearing.

Grounds of appeal in reclaiming motion

38.18.—(1) Grounds of appeal shall consist of brief specific numbered propositions stating the grounds on which it is proposed to submit that the reclaiming motion should be granted.

(2) On lodging grounds of appeal, the party lodging them shall—

(a) lodge three copies of them in process; and (b) send a copy of them to every other party.

(3) A party who has lodged grounds of appeal or answers to the grounds of appeal may apply by motion to amend the grounds or answers, on cause shown.

(4) An application under paragraph (3) shall include any necessary application under rule 38.14(1) (sist or variation of timetable).

Lodging of appendices in reclaiming motion

38.19.—(1) Where, in a reclaiming motion, the reclaimer considers that it is not necessary to lodge an appendix to the reclaiming print, the reclaimer shall, by the relevant date specified in the timetable—

(a) give written intimation of that fact to the Deputy Principal Clerk; and (b) send a copy of that intimation to each respondent.

(2) Where the reclaimer provides intimation under paragraph (1), a respondent may apply to a procedural judge, by motion, for an order requiring the reclaimer to lodge an appendix.

(3) An application under paragraph (2) shall include specification of the documents that the respondent seeks to have included in the appendix.

(4) Where an application is made under paragraph (2), a procedural judge may make an order requiring the reclaimer to lodge any appendix that the procedural judge considers necessary, within such time as the procedural judge may specify.

(5) An order under paragraph (4) may only be granted by a procedural judge after having heard parties.

(6) Paragraph (7) applies where—

(a) a respondent seeks to submit for consideration by the court notes of evidence or documents in respect of which the reclaimer has given written intimation to the respondent that the reclaimer does not intend to include in his appendix; and (b) a procedural judge has not made an order under paragraph (2) requiring the reclaimer to lodge an appendix which includes such notes of evidence or documents.

(7) The respondent shall incorporate such notes or documents in an appendix which he shall lodge within such period as is specified by the procedural judge in disposing of the application under paragraph (4).

(8) Where, in any reclaiming motion other than one in which intimation is given under paragraph (1)—

(a) the opinion of the Lord Ordinary has not been included in the reclaiming print; or (b) it is sought to submit notes of evidence or documents for consideration by the court, the reclaimer shall lodge an appendix incorporating such documents within such period as shall be specified in the timetable.

Notes of evidence not extended when agreed

38.20. Where, in a reclaiming motion, the parties are agreed that on any particular issue the interlocutor reclaimed against is not to be submitted to review, it shall not be necessary to reproduce the notes of evidence or documents relating to that issue.

Single Bills

38.21. At any hearing of a reclaiming motion in the Single Bills, the Inner House may determine the motion or make such other order as it thinks fit.

434 REPORTS-1984, SCOTS LAW TIMES

2nd Div. (NOTE) process are other factors since they are illustrative of the vexatious nature of the litigant. Looking to Lord SECOND DIVISION the nature of the actions the respondent has raised, Advocate the persons he has convened as defenders, his v. Cooney (The Lord Justice-Clerk (Lord Wheatley), purpose in using or rather abusing the legal Lords Hunter and Robertson) processes to carryon a war of attrition, the 21 June 1984 hopelessness of his actions yet his persistence in 21 June 1984 pursuing them to the limits which the law allows, and the damaging effects of this conduct on his 143. LORD ADVOCATE v. COONEY victims, we are convinced that this respondent has been shown to fall within the provisions of the Act Administration of justice - Vexatious litigation - and that the prayer of the petition should be Vexatious Actions (Scotland) Act 1898 (61 & granted. In granting the prayer, we are mindful of 62 Vict., c. 35). the fact that we are not preventing the respondent Held that whether a person is a vexatious litigant from raising an action in court if he has a good and within the meaning of the Vexatious Actions proper action to raise. All that we are doing is to (Scotland) Act 1898, does not simply depend on the put a brake on his vexatious activities. If he can number of actions raised, but on the manner in which he has conducted himself within the legal satisfy a Lord Ordinary that an action which he process. wishes to raise is not vexatious and that he has a prima facie case he can be allowed to proceed with The Lord Advocate raised a petitIOn against that action." Patrick Cooney, an undischarged bankrupt, for an order under the Vexatious Actions (Scotland) Act Counsel for Petitioner, D. S. Mackay; Solicitor, 1898. Having been sequestrated on 12 July 1979, Crown Agent. - For Respondent, Party. the bankrupt entered into a foray of litigation against the trustee in bankruptcy, a chief constable C. H. A. of L. and another person. He raised four prolix and pro longed actions and their contents and the manner in which he conducted them were found by the court to be evidence in themselves of his vexatious pro clivities. On two occasions, having been ordained to lodge caution, he then appealed against the dismissal of the actions after failing to lodge the caution. The grounds of the appeals were irrelevant HIGH COURT OF JUSTICIARY and they were summarily dismissed by the Court of Session. In one action he sought an irrelevant and (The Lord Justice-General (Lord Emslie), inconsequential remedy. In another he sought an The Lord Justice-Clerk (Lord Wheatley), irrelevant interdict against the chief constable. In Lords Cameron, Dunpark and Grieve) the courses of all these litigations expenses were awarded against him and never paid. On one 29 June 1984 occasion he arrested the bank account of the person called as defender, on his own admission, not for 144. HUNTER v. H.M. ADVOCATE the purpose for which the procedure was designed, but to teach the defender a lesson. Justiciary Evidence Witness In giving the opinion of the court the Lord Compellability - Spouse - Accused charged Justice-Clerk (Lord Wheatley) said: "His actions with assault and murder - Spouse of accused have been variously described by judges as hope called by defence - Direction by trial judge less, irrelevant, incompetent and without merit. He that she need not give evidence - Whether is clearly using court actions as a weapon in a war spouse compellable - Whether miscarriage of of attrition against people whom he regards as justice - Criminal Procedure (Scotland) Act 1975 (c. 21), s. 143. being responsible for his bankruptcy or who deny him the remedies which he seeks. A reasonable An accused person was charged on indictment, first with assaulting his daughter and secondly yardstick of his litigious conduct can be obtained murdering her on a later date. His wife was included from the fact that on two occasions he has sought in the Crown list of witnesses, but was not called by to obtain the leave of a judge in the Court of the Crown. The accused, who had lodged a special Session to raise a petition to the nobile officium of defence incriminating his wife in respect of the the court and on each occasion he was refused leave assault charge only, called her as a witness for the on the ground that he had not presented a prima defence. She was warned by the trial judge that she facie case. need not answer questions the answers to which "The question whether a person is a vexatious might incriminate her or her husband. After she had given answers to several questions, the court was litigant within the meaning of the Act does not adjourned for a short time because the accused was depend simply on the number of actions he has ill. When the coun reconvened, the trial judge told raised. The manner in which he has conducted the accused's wife that she did not require to answer himself within the legal process, the taking of a any questions at all, whereupon she declined to give succession of hopeless appeals and his abuse of the further evidence. The accused was subsequently NSWLR) ATTORNEY-GENERAL v WENTWORTH 481 26

A ATTORNEY-GENERAL V WENTWORTH Common Law Division: Roden J 25 July-9 August, 7 October 1988 Practice — Vexatious litigants — Proceedings to restrain — Test for determining whether proceedings “vexatious” — “Habitually and B persistently” instituted — Absence of reasonable ground — Other relevant considerations — Supreme Court Act 1970, s 84(1). Injunctions — To restrain legal proceedings — Vexatious litigants — Test for determining whether proceedings “vexatious” — “Habitually and persistently” instituted — Absence of reasonable ground — Other relevant considerations — Supreme Court Act 1970, s 84(1).

C The Supreme Court Act 1970, s 84(1), provides: “Where any person (in the subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney-General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court, and that any legal proceedings instituted by the vexatious litigant in any court before the making D of the order shall not be continued by him without leave of the Court.” Held: (1) For the purposes of s 84(1) legal proceedings may properly be regarded as vexatious on either objective or subjective grounds. (491C) (2) The relevant test for determining whether proceedings are “vexatious” is: (a) proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 (b) they are vexatious if they are brought for collateral purposes, and not the purpose of having the court adjudicate on the issues to which they give rise; E (c) they are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; (d) in order to fall within the terms of s 84:

(i) proceedings in categories (a) and (b) must also be instituted without reasonable ground (proceedings in category (c) necessarily satisfy that requirement); F (ii) the proceedings must have been “habitually and persistently” instituted by the litigant. (491C-E) (3) Other relevant considerations on an application under s 84(1) include: (a) whether, having regard to the substance of the matter and not to its form, the particular matter can properly be regarded as the institution of proceedings as distinguished from the taking of a step in proceedings that are already on foot. (491F-492D) Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 485-488, G adopted and applied. Commonwealth Trading Bank v Inglis (1974) 131 CLR 311, considered. (b) whether the proceedings are in fact vexatious — not whether they have been instituted vexatiously. (492D-E) 482 SUPREME COURT99 NSWLR 999] ([1988] 14 27 Re Vernazza [1960] 1 QB 197 at 208, applied. (c) whether, if proceedings are found to be vexatious, what the litigant has done in A instituting, as distinct from pursuing the proceedings, has been done “habitually and persistently”. (492E-G, 495G) (d) whether there is an absence of reasonable ground for the institution of the particular proceedings under consideration; as to which the mere presence of scandalous, embarrassing, irrelevant or objectionable material, need not be relevant. (492G) Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 and Re Langton [1966] 1 WLR 1575; [1966] 3 All ER 576, considered. (4) The power of the Court to make an order under s 84(1) is an unfettered B discretionary one as to which the prima facie right of access to the courts enjoyed by all citizens and the availability of other powers to deal with abuse of process will be relevant considerations. (493C) (5) In circumstances where, out of a large number of inter-related proceedings including both substantial and incidental matters, three matters only could be regarded as vexatious proceedings instituted without reasonable grounds, it was not appropriate to conclude that the defendant had “habitually and persistently” and without reasonable ground instituted vexatious proceedings and no order should be made under s 84. (505C) C Note: A Digest — PRACTICE [1]; INJUNCTIONS [51]

CASES CITED The following cases are cited in the reported judgment: Attorney-General for New South Wales v Solomon (1987) 8 NSWLR 667. Birch v Birch [1902] P 130. D Boaler, Re [1915] 1 KB 21. Cabassi v Vila (1940) 64 CLR 130. Chaffers, Re; Ex parte Attorney-General (1897) 45 WR 365; (1897) 76 LT 351. Commonwealth Trading Bank v Inglis (1974) 131 CLR 311. Cox v Journeaux [No 2] (1935) 52 CLR 713.

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478. Langton, Re [1966] 1 WLR 1575; [1966] 3 All ER 576. E Lawrance v Lord Norreys (1888) 39 Ch D 213. McDonald v McDonald (1965) 113 CLR 529. McHarg v Woods Radio Pty Ltd [1948] VLR 496. McHenry v Lewis (1882) 22 Ch D 397. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389; 79 ALR 9. R De W Kennedy (Finance) Pty Ltd v Ley (Holland J, 29 March 1978, unreported). Vernazza, Re [1960] 1 QB 197. Wentworth v Rogers [1984] 2 NSWLR 422. F Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. Wentworth v Rogers (No 10) (1987) 8 NSWLR 398. The following additional cases were cited in argument: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685. Attorney-General v Vernazza [1960] AC 965. Beaudesert Shire Council v Smith (1966) 120 CLR 145. G Becker, Re [1975] 1 WLR 842; [1975] 2 All ER 587. Davison v Colonial Treasurer (1930) 47 WN (NSW) 19. Dey v Victorian Railways Commissioners (1949) 78 CLR 62. Dresel v Ellis [1905] 1 KB 574. NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 483 28 Gibbs v Spautz (Smart J, 2 October 1987, unreported). A Gordon v Gordon [1904] P 163. Grepe v Loam (1888) 37 Ch D 168. Hood Barrs v Cathcart [1894] 3 Ch 376. Hood Barrs v Heriot [1897] AC 177. John Robinson & Co v The King [1921] 3 KB 183. Jones, Re; Re Vexatious Actions Act (1902) 18 TLR 476. Kinnaird (Lord) v Field [1905] 2 Ch 306. Lane v Registrar of Supreme Court (NSW) (1981) 148 CLR 245. B Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210. Millane, Re [1930] VLR 381. Pacific Acceptance Corporation Ltd v Thompson [1963] NSWR 56. Pryor v City Offices Co (1883) 10 QBD 504. Public Prosecutions, Director of v Humphrys [1977] AC 1. R v Collins [1954] VLR 46. Spautz v Williams [1983] 2 NSWLR 506. Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716. Wentworth v Rogers (No 7) (1986) 7 NSWLR 204. C Wentworth v Rogers (No 8) (1986) 7 NSWLR 207. Wentworth v Rogers (No 9) (1987) 8 NSWLR 388. Wentworth v Rogers (No 12) (1987) 9 NSWLR 400. Wentworth v Woollahra Municipal Council (1982) 149 CLR 672. Wilson (I D) (A Bankrupt), Re; Ex parte Bebbington Easton [1973] 1 WLR 314; [1973] 1 All ER 849.

SUMMONS D This was a summons for orders under s 84(1) of the Supreme Court Act 1970 that the defendant should not, without leave of the Court, institute any legal proceedings or continue any legal proceedings already instituted by her. M F Gray QC, M L D Einfeld and P G Mahony, for the plaintiff.

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 R V Gyles QC and R M Goot, for the defendant. E Cur adv vult 7 October 1988

RODEN J. The Attorney-General as plaintiff seeks against the defendant Katherine Wentworth Wentworth, orders under the Supreme Court Act 1970, s 84(1), that, without leave of the Court, she not institute any legal proceedings or continue any legal proceedings already instituted by her. F Section 84(1) provides as follows: “(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without leave of the Court, G institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by him without leave of the Court.” 484 SUPREME COURT99 NSWLR 999] ([1988] 14 29 There are various means by which the Court can control proceedings before it, and protect its process from abuse. It enjoys inherent powers, but A these do not extend to the making of orders which would prevent a potential litigant from instituting proceedings without leave. The relationship between the inherent powers and the statutory provision, and the history of the development of the latter, were considered and explained in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311. In their joint judgment in Inglis, Barwick CJ and McTiernan J said (at 319): B “… the making of unwarranted and vexatious applications in an action which is pending in the court is, in our opinion, a matter over which there is an inherent power in the court to exercise control. There is an essential difference, in our opinion, between regulating the conduct of such an action so as to prevent the court’s process from being abused, on the one hand, and impeding a particular person in the exercise of a right of access to the court, on the other hand.” The extreme nature of the remedy provided by s 84 (and by corresponding C provisions elsewhere) has been the subject of much judicial comment. In Re Boaler [1915] 1 KB 21, Kennedy LJ said (at 34) of the Vexatious Actions Act 1896 (UK), that it: “seriously abridges the right of the subject to … redress in the Courts of Law”. More recently, and closer to home, in R De W Kennedy (Finance) Pty Ltd Ley (Holland J, 29 March 1978, unreported), Holland J, referring to the powers of the court to control litigation and litigants, said: D “… The most drastic is the power on an application by the Attorney- General … to forbid a vexatious litigant from starting any legal proceedings in any Court, … without first obtaining the leave of the Court. This denies to such a litigant a right that all other citizens have, namely, to call upon the Court to adjudicate a claim simply by making it in Court in the prescribed manner.” This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 In order to determine whether, in any case, such order should be made, it is necessary first to decide whether the requirements of the section have E been met, and in the event of a finding favourable to the plaintiff, then to consider whether, in all the circumstances, the order should be made in the exercise of the Court’s discretion. If that stage were reached, regard would be had both to the serious implications of so interfering with the litigant’s right of access to the courts, and to the other powers available to the Court to regulate and control proceedings before it, once they have been instituted. In the present case, the conduct which it is argued brings the defendant F within the terms of the section, is characterised by the plaintiff as the institution of proceedings which: (a) were certain to fail; (b) constituted an attempt to re-litigate matters previously determined adversely to Miss Wentworth; (c) duplicated other proceedings by which the same relief was sought; (d) by the process and evidence filed in support, were scandalous, embarrassing etc; G (e) were brought in a form amounting to an abuse of process (not merely defective), or (f) otherwise amounted to an abuse of process. NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 485 30 All the litigation referred to, which is the subject of complaint by the A Attorney-General, arises either directly or indirectly from Miss Wentworth’s claim that in 1977 she was the victim of an aggravated assault at the hands of her then husband (Gordon Rogers), and her attempts to pursue both criminal and civil remedies in respect of that matter. The legal proceedings most directly arising from her claim, were committal proceedings in which Miss Wentworth was the informant, and a civil action in this Court in which she was the plaintiff. Although it is not suggested that they were vexatious proceedings, or that they were instituted without reasonable B ground, it is convenient to review those proceedings briefly, before turning to the considerable body of litigation which they have spawned. Indeed it is necessary to have an appreciation of those basic proceedings, in order fully to understand what has arisen from them. The committal proceedings were heard over a protracted period in 1981 and 1982. That they were soundly based, and that their institution was justified, seems to flow from the fact that ultimately a committal order was C made. Some persistence on the part of Miss Wentworth was necessary before that result was achieved. The magistrate found that there was a prima facie case, but declined to commit. An order in the nature of mandamus was sought in this Court. It was refused at first instance, but that decision was reversed on appeal to the Court of Appeal: Wentworth v Rogers [1984] 2 NSWLR 422. In the course of his judgment, Hutley JA (at 424) expressed agreement with Glass JA, that: “… the evidence raised a strong or probable presumption of the guilt of the respondent”, and he said D (at 426): “… the appellant has suffered a grave injustice at the hands of the magistrate . …” Glass JA (at 428) reviewed the material before the magistrate, and referred to Miss Wentworth’s direct evidence of the assaults complained of, evidence of her complaints shortly thereafter, and evidence from a solicitor that Mr Rogers’ response to the specific allegations upon which the charges This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 of assault occasioning actual bodily harm and buggery were based, had been: E “It’s all my fault. It’s all true.” A committal order was made, and a trial followed. In the event, Mr Rogers was acquitted by a jury, but that fact bears no relevance to the present proceedings — and of course Miss Wentworth, although a witness, was not a party to the trial. The civil proceedings are still pending. They were instituted in 1982, and in 1985 there was a trial, in which there were considered together the F present defendant’s claim for damages for assault, and a cross-claim for damages for malicious prosecution. It resulted in verdicts for Mr Rogers both on Miss Wentworth’s claim and on his cross-claim. However, the judgment in that matter has been set aside on appeal, and a new trial has been ordered. The fact that there was material in the committal proceedings warranting an order that Mr Rogers stand trial, would seem, for the purposes of the present proceedings, to provide justification for the institution of the civil G claim for damages; in any event, as I have said, it is not suggested that the civil suit is vexatious, or that it was instituted without reasonable ground. In respect of that body of litigation, in all of which Miss Wentworth was the moving party — one criminal prosecution, one civil action, one 486 SUPREME COURT99 NSWLR 999] ([1988] 14 31 application for an order in the nature of mandamus, and two appeals to the Court of Appeal — the proceedings must be regarded as having been A properly instituted and prosecuted, with a large measure of success; and indeed as yet no “defeat” that has not been reversed on appeal. That seems immediately to distinguish this case from the vast majority of notable cases in which persons have been “declared” vexatious litigants. The extent of the litigation that has flowed from those proceedings, or has arisen in consequence of them, can be gauged from the fact that the plaintiff has referred before me to some twenty-eight notices of motion, sixteen summonses, and in all a total of more than 180 documents, all either filed in B court by Miss Wentworth, or being transcripts or judgments in matters instituted or initiated by her. Those against whom orders have been sought, include barristers and solicitors who had from time to time acted either for or against Miss Wentworth, and persons who had been witnesses, or potential witnesses, in the criminal and civil proceedings referred to. Her allegations include fraud, perjury, and conspiracy to pervert the course of justice. The reliefs and orders sought by her, include committal for contempt C of court, and the setting aside of a judgment on the ground of fraud. It is in those matters that I am asked to find the habitual and persistent institution of vexatious legal proceedings without reasonable ground, which would empower me to make the order now sought. Questions of law: Before I list the proceedings referred to, I should deal with a number of questions of law on which I invited and received argument, and which may D have a bearing on the relevance of certain aspects of the defendant’s conduct relied upon by the plaintiff. Those questions were: 1. For relevant purposes, what is the meaning of “vexatious”, and in particular does the definition include any subjective element? 2. What, for relevant purposes, constitutes the institution of legal

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 proceedings? 3. Is relevant vexation only to be found in the institution of proceedings? 4. Does “habitually and persistently” imply something more than great E frequency? 5. What, for relevant purposes, is a “reasonable ground”, and again is there a subjective element? 6. What bearing, if any, on each of the above, have: (a) the form of process employed; (b) the substance of the relief sought; (c) the nature of the material relied upon, and F (d) the subsequent conduct of the proceedings? 7. If the requirements of the subsection are met, what criteria are relevant to the exercise of the court’s discretion? They give rise largely to questions of construction, and for the most part appear to be unresolved by authority, the courts having tended to make ad hoc decisions on the facts of particular cases, rather than produce definitive statements which might be of more general application. G What of course is required is a construction of the section as a whole. Particularly in the light of the provisions of the Interpretation Act 1987, s 33, it might be thought that the questions posed invite too pedantic an approach. However, the provision has the potential so seriously to interfere NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 487 32 with the basic right of access to the courts as to warrant a strict A construction. In Re Boaler, Scrutton J (as he then was), dealing with the Vexatious Actions Act 1896 (UK), said (at 36): “… This right (of access to the courts) is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But the language of any such statute should be jealously watched by the Courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension.” B In any event some analysis of the terms used is necessary before any construction of the section as a whole can be undertaken. 1. Meaning of “vexatious”: This is obviously a critical term, and can hardly be regarded as mere surplusage. If, as I believe must be the case, “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings”, means something different from “habitually and persistently and without C any reasonable ground institutes legal proceedings”, then relevant vexation cannot be found simply in the habitual or persistent manner in which legal proceedings are instituted, in a lack of reasonable ground for their institution, or in a combination of those factors. Something more is required. Similarly, the use of the words “without any reasonable ground”, implies that it would be possible to institute vexatious legal proceedings, and indeed to do so habitually and persistently, with reasonable ground. D Where then to begin the search for a meaning of “vexatious” which requires something more than habit and persistence, or the absence of reasonable ground, and which is consistent with the presence of reasonable grounds? Unaided by judicial guidance, one might turn to the Oxford English Dictionary. There it is acknowledged that the word may be used of persons

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 or things, so as to allow either a subjective or an objective connotation. Significantly, the following appears: “Of legal actions: Instituted without E sufficient grounds for the purpose of causing trouble or annoyance to the defendant.” It seems that from the earliest, the word has been used in and in connection with the law, and has tended to have some subjective element. The first illustration in Oxford of the use of the word in any context is: “1534 Star Chamber Cases (Selden) II.319 — ‘Henry … of his vexacyus mynde purchased a writte of monstrauerunt in the Comen place ageynst the seid defendaunt’.” According to the Oxford Companion to Law (1980), F “vexatious actions” are: “Actions brought, not bona fide, but brought to annoy or embarrass the other party or not likely to lead to any practical result.” A subjective element, such as malice, lack of bona fides, or ulterior motive, seems to be both appropriate and necessary to give significance to the term “vexatious” within the context of s 84(1). It provides the required “something more” than is conveyed by the other words in the section, and it is consistent with legal proceedings instituted either with or without G reasonable ground. If I were unaided by judicial authority, I would opt for such a construction here. I appreciate that, isolated from its context, the expression “vexatious legal proceedings” could mean “legal proceedings which vex”, irrespective of the motives of the person instituting them. A 488 SUPREME COURT99 NSWLR 999] ([1988] 14 33 construction requiring a purely objective test might also be applied to the word when used in the expression “vexatious litigant”, which also appears in A the section, although it would sit less happily there. The construction required for present purposes, however, is a construction within the context of the section as a whole; and for the reasons stated, I would, on first impression, opt for the inclusion of a subjective element. The matter, however, is not free from judicial authority to which I must have regard. And the question is of great importance in these proceedings, as the Crown Advocate, who appeared for the plaintiff, expressly disavowed any suggestion that Miss Wentworth had acted maliciously in any of the B proceedings referred to. I turn then to those authorities. As I do so, I note that, for two reasons, they may be of limited assistance. One reason is that, as I have said, the courts have tended to make ad hoc decisions, rather than produce definitive statements; the other, that many of the authorities referred to, have been concerned with the use of the word in a different context. In McHenry v Lewis (1882) 22 Ch D 397, Bowen LJ said (at 407-408): C “… I agree that it would be most unwise, unless one was actually driven to do so for the purpose of deciding this case, to lay down any definition of what is vexatious or oppressive, or to draw a circle, so to speak, round this Court unnecessarily, and to say that it will not move outside it. I would much rather rest on the general principle that the Court can and will interfere whenever there is vexation and oppression to prevent the administration of justice being perverted for an unjust D end.” The court there, of course, was not dealing with a provision such as s 84(1). It was considering staying an action because of the pendency of proceedings on the same cause of action abroad. It is understandable that when exercising the inherent power to control

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 proceedings which are already before the Court, an attitude might be adopted that if the intervention of the Court is called for, then the Court will intervene, and will give the conduct an appropriate description. Indeed E the description given to such conduct is likely to involve any of the terms “vexatious”, “oppressive”, “abuse of process”, “embarrassing”, “scandalous”, or any combination of them; and they may not be chosen with great precision. Precision in description or definition is hardly required, within the context of the Court acting in the exercise of its inherent jurisdiction to protect its own process from any form of abuse. It is more important that the conduct be recognised, than that it be defined. F That same lack of precision is evident in Rules of Court that have developed from the inherent power. I illustrate from the Rules of this Court (Supreme Court Rules 1970): Part 13, r 5, relates to the power to stay or dismiss proceedings (in whole or part) — if they disclose no reasonable cause of action; or are frivolous or vexatious; or are an abuse of the process of the Court. Part 15, r 26, relates to striking out pleadings (in whole or part) — if they tend to cause prejudice, embarrassment or delay; or otherwise are an abuse G of process. Part 38, r 8, relates to striking out affidavits (or taking them off the file) — if they contain scandalous, irrelevant or otherwise oppressive matter. NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 489 34 Part 65, r 5, relates to striking out parts of a document (including A presumably pleadings and affidavits) — if they are scandalous, frivolous, vexatious, irrelevant or otherwise oppressive. In those rules, all of which relate to the control of proceedings already before the Court, and which appear to mirror the inherent powers, frivolity, scandal, embarrassment, vexation, oppression, and abuse of process, are all referred to, without, it seems, it being intended that each should have a clearly defined and distinct meaning. B It should be otherwise when dealing with provisions such as those of s 84, which in my view, for the reasons stated earlier, call for strict construction. The principal authority relied on by Mr Gray, who argued for a purely objective test, was Re Vernazza [1960] 1 QB 197. There it was argued that “vexatious”, in the Supreme Court of Judicature (Consolidation) Act 1925 (UK), s 51 (the equivalent of our s 84(1)), required a subjective element. The proposition is referred to in the judgment of Ormerod LJ, who said (at 208): “… Therefore (counsel for the litigant) submitted that, in order to be C satisfied before an order is made that the conditions of the section have been complied with, it is necessary to consider first from the objective point of view whether the proceedings were instituted without any reasonable ground, and that each separate action should be considered and decided on accordingly. Secondly, the question should be considered as to whether they were vexatious, and that was a subjective matter, and really had to be decided by considering whether the D appellant was acting maliciously or otherwise than in good faith.” Dealing with this argument, Ormerod LJ, again (at 208) said: “If I may deal first with that submission, in my opinion it is not the right way to look at the matter. The words of the section are ‘without any reasonable ground instituted vexatious legal proceedings’. They are referring to legal proceedings, and the question is not whether they This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 have been instituted vexatiously but whether the legal proceedings are E in fact vexatious. I suppose most proceedings are vexatious to the persons against whom they are directed, and, therefore the further question has to be considered whether, though they may be vexatious, they have been brought without any reasonable ground”. (The emphasis is mine.) This approach was adopted and followed by Yeldham J who, in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, said (at 485): “… as Lord Parker CJ observed in Re Langton [1966] 1 WLR 1575 F (at 1578); [1966] 3 All ER 576 at 577, in asking whether proceedings are vexatious, it is not the manner in which they are conducted which is the subject of the inquiry, but whether, having regard to their nature and the substance of them, they properly bear that description. See also per Ormerod LJ in Re Vernazza ([1960] 1 QB 197 at 208).” I shall return later to the passage from Lord Parker’s judgment referred to in Pedler. For immediate purposes, it is sufficient to note that Yeldham J G referred to the passage in Re Vernazza which I have cited above, and that that is relied on by the plaintiff as further indicating that there is no subjective element in “vexatious” for the purposes of s 84. As I have said, a number of the authorities dealing with “vexatious” 490 SUPREME COURT99 NSWLR 999] ([1988] 14 35 proceedings, relate to the exercise by courts of their inherent powers, or powers conferred by rules, to deal with proceedings already instituted. A Consistently those authorities point to the availability of a purely objective test, and having regard to their weight, and Re Vernazza, I regard the requirement of vexation for the purposes of s 84(1) as capable of being satisfied even in the absence of malice or improper motive on the part of the litigant. In Lawrance v Lord Norreys (1888) 39 Ch D 213, Bowen LJ said (at 234): “The action appears to me to be vexatious and oppressive. It is an B abuse of the process of the Court to prosecute in it any action which is so groundless that no reasonable person can possibly expect to obtain relief in it.” In Cox v Journeaux [No 2] (1935) 52 CLR 713, Dixon J, as he then was, said (at 720): “The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the C defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender.” D That position has been consistently taken in the High Court. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ said (at 129): “… There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient E for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action — if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal — is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possible succeed’; ‘manifestly F groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them (the pleadings) to stand would involve useless expense’.” What those cases, and the line of authorities of which they form part, make clear, is that where an objective test is applied to determine whether the court should exercise its power to prevent litigation from running its normal course — either by striking out or by summary dismissal — what G amounts to “utter hopelessness” must be shown. It seems to me that when there is an application for the far more drastic s 84(1) order, which would deny or limit a citizen’s right of access to the courts, and that is considered NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 491 36 on a purely objective assessment of proceedings instituted by her, nothing A less than that “utter hopelessness” must be shown. Most recently the meaning of “vexatious” has been considered in the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389; 79 ALR 9. The context was different again, the court there considering the circumstances in which proceedings might be dismissed or stayed on inappropriate forum grounds. The preponderance of judicial opinion there expressed seems to favour an objective test, although the relevance of that is limited by the context. B There have, of course, been many cases in which relevant vexation has been found in the motivation of the litigant. A recent instance in this Court, when s 84 was under consideration, was Attorney-General for New South Wales v Solomon (1987) 8 NSWLR 667, where it was held that litigation is vexatious if it is brought for collateral or ulterior purposes, or if it is not a bona fide attempt to have the questions in dispute adjudicated. It seems then that litigation may properly be regarded as vexatious for C present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. D 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. 4. In order to fall within the terms of s 84: (a) proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 requirement); (b) the proceedings must have been “habitually and persistently” instituted E by the litigant. 2. Institution of Proceedings: There is a distinction between the institution of proceedings, and the taking of a step in proceedings that are already before the court. The importance of that distinction is recognised in Commonwealth Trading Bank v Inglis, and an appreciation of it is necessary to an understanding of the F circumstances for which s 84, and its counterparts elsewhere, are designed. In Hunters Hill Municipal Council v Pedler, Yeldham J (at 485-488) considered a number of English decisions on the point. They were also referred to in argument before me, but I do not find it necessary to indulge in a further analysis of them. Yeldham J’s conclusion was expressed in these terms (at 488): “… While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is G still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which 492 SUPREME COURT99 NSWLR 999] ([1988] 14 37 is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the A matter that regard must be had and not to its form.” With respect, I adopt the final sentence of that passage. I regard Commonwealth Trading Bank v Inglis as authority for the proposition that interlocutory proceedings taken in the course of an action, no matter by whom they are instituted, are subject to the inherent power of the court to protect its process from abuse. In so far as they are interlocutory proceedings in a pending action, they are not, in my view, B “proceedings instituted” for the purposes of s 84. However, if they seek substantive relief, and particularly if they seek to bring an additional party into the proceedings, they are capable of being so regarded, even if they are properly commenced by notice of motion in existing proceedings. Like many before me, I decline the opportunity to produce a definition of “the institution of proceedings” for present purposes, a task described as “almost impossible” by Willmer LJ in Re Vernazza (at 215). As I consider each of the matters relied upon by the plaintiff, I shall deal C with the question of whether it can properly be regarded as the institution of proceedings for the purposes of s 84. In doing so, I shall have regard to the distinction between the institution of proceedings and the taking of a step in proceedings that are already on foot, but shall bear in mind that it is the substance of the matter rather than the form that must be considered. 3. Vexation — only in institution of proceedings? The answer to the third question I have posed seems clearly to be “No”. D For this proposition it is only necessary to refer again to the passage from the judgment of Ormerod LJ in Re Vernazza referred to above. His Lordship said (at 208): “… the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious.” This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 4. Habitually and persistently: E On first impression, these words clearly imply more than great frequency. “Habitually” suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; “persistently” suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness. The need to give some force to those words seems the greater, as some corresponding provisions simply require that the proceedings be instituted “frequently”: see, for example, O 63, r 6(1), of the High Court F Rules, referred to in Commonwealth Trading Bank v Inglis. They have not, however, been the subject of much judicial consideration. Again I am reluctant to attempt a definition that might be of universal application. When I have resolved the question of which, if any, of the proceedings referred to are properly to be regarded as falling within the terms of the section, then I will consider, in context, what it is that the defendant has done “habitually and persistently”. G 5. What is a reasonable ground? This question is not of importance in the present case, as in the absence of any suggestion of malice or ulterior motive, it is necessary, on an objective NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 493 38 assessment, to find that “utter hopelessness” to which I have referred, in A order to find that any of the proceedings relied upon by the plaintiff were in fact vexatious. Subjective considerations, such as a reasonable belief on the part of the litigant, based for example upon legal advice, could then only be relevant to the exercise of discretion. 6. The relevance of specific matters: This question is really answered by the answers given to the earlier questions. Of the matters listed under 6 (supra), it is probably only (c), “the B nature of the matters relied upon”, that is directly relevant, and that only to the extent that it bears upon the presence of reasonable grounds, or the “utter hopelessness” of the proceedings. 7. Matters relevant to discretion: There in no fetter on the Court in considering all matters that bear upon the appropriateness of making the order sought. I repeat that the prima facie right of access to the courts enjoyed by all citizens, and the availability of C other powers to deal with abuse of process, will be relevant considerations. Regard would also be had inter alia to the various matters listed under 6 (supra). The proceedings relied upon: The proceedings relied upon by the plaintiff as vexatious, and habitually and persistently and without any reasonable ground instituted by the defendant, relate to a number of incidental, and in some instances D substantial, reliefs sought by her. As I have said, they all arose directly or indirectly from her claim against her former husband, which has not yet been resolved. They can conveniently be considered in groups as follows: 1. Miscellaneous matters arising from civil trial, viz: (a) interlocutory appeal on evidence ruling, (b) orders for security pending appeal, This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 (c) costs of an order by Cantor J, E (d) jury. 2. Proceedings against Miss Wentworth’s former solicitors, Messrs Sly and Russell, relating to costs and retained documents. 3. Proceedings for contempt of court against Mr Rogers and members of the firm of solicitors acting for him, Messrs Phillips Fox. 4. Proceedings for contempt of court against counsel and solicitor acting against her, Mr Rares and Mr Bartos respectively, and a related application F that a subpoena be directed to Young J. 5. Proceedings to challenge grants of legal aid to Mr Rogers. 6. Proceedings against a wide array of persons alleging fraud, perjury and conspiracy to pervert the course of justice, and seeking to have a judgment set aside on the ground of fraud. 7. Miscellaneous applications that judges disqualify themselves, or that counsel and solicitor not act, in matters in which Miss Wentworth was involved. G 8. Defamation proceedings against John Fairfax and Sons Ltd. 9. Defamation proceedings against Peter Cappe. 10. Various steps taken by Miss Wentworth in the matter currently before me. 494 SUPREME COURT99 NSWLR 999] ([1988] 14 39 I propose now to look at each of those matters in turn. As I do so, I am conscious of the fact that it is the combined effect of all the vexatious A proceedings habitually and persistently and without any reasonable ground instituted by the defendant which must be considered. However, it is necessary first to look separately at each of the proceedings referred to, in order to determine whether it fits that description. In this regard, I note that in Attorney-General for New South Wales v Solomon, Young J said (at 673): “The Court must examine the proceedings under review. It looks to B see whether each is vexatious, though it remembers that an order is justified although there may have been reasonable grounds for the proceedings in each case considered by itself if the pattern emerges of vexatious proceedings being habitually and persistently instituted.” (The emphasis is mine.) Re Chaffers; Ex parte Attorney-General (1897) 45 WR 365, is cited as the authority for that proposition. A reading of the judgment of Wright J in that case, as reported at (1897) 76 LT 351, suggests that to represent it C accurately, the words I have emphasised should read “in some of the cases”. Wright J said (at 352): “… The other point was on the merits. It was argued that the language of the Act had not been satisfied. But, upon reading the section in question, it seems to me that this is a matter which does not depend upon any consideration of whether there may not have been possible causes of action in some of these cases. What we have to look D at is the general character and result of the number of actions brought by the respondent; and, looking at these, it seems to me plain that there has been a great mass of litigation of a vexatious character, habitually and persistently instituted without any reasonable ground.” (Again the emphasis is mine.)

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 The word “each” does appear in a condensed version of the report at (1897) 45 WR 365 at 366. The structure of the sentence is altered, and it E reads: “… I think that the consideration of whether a person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground does not depend on a minute examination of whether in each particular action there was or was not a reasonable ground. …” It is not just that the words used in the fuller report are “in some of these cases”. If there had been reasonable grounds for the institution of each of F them, there could not have been “a great mass of litigation … instituted without any reasonable ground”. In any event, in Re Chaffers the facts were vastly different from those I have to consider. This is clear from the words immediately following those quoted above: “… Forty-seven actions out of forty-eight failed, and, if we add to that the fact that in none of them have any costs been paid by the respondent, I think it rather tends to strengthen the inference that they G were vexatiously brought.” The view I take in the present case, is that such of the proceedings referred to by the Attorney-General for the institution of which there was NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 495 40 any reasonable ground, cannot be regarded as part of a body of litigation A warranting an order under s 84. It is interesting to note that Mr Chaffers and his propensity for litigation against such personages as the Archbishop of Canterbury, the Speaker of the House of Commons, the Trustees of the British Museum, the Lord Chancellor, the Master of the Rolls, the Public Prosecutor, the Solicitor for the Treasury and several County Court judges, were the catalyst for the introduction of the Vexatious Actions Act in England in 1896. This prodigious litigant had been indulging his thankfully rare propensity since B 1891. The Court held that it was appropriate to look at the number, general character and result of the proceedings, to determine whether they met the requirements of the section. A consideration of those factors in Re Chaffers and here, show that they are vastly different cases. [His Honour then considered, in a manner not calling for report, the various proceedings referred to. In this consideration he stated:] C 6. Fraud, perjury and conspiracy: Miss Wentworth asserts that in her attempts to litigate her claim she was the victim of an aggravated assault at the hands of Mr Rogers, she has been frustrated by a concerted effort on the part of a group of people, who are basically family members, friends and supporters, solicitors, doctors, and other people associated with them, to withhold the truth, and in some instances to give deliberately false testimony. She characterises this as D involving perjury and conspiracy, and, quite apart from the criminal implications of those matters, she asserts that in consequence the judgment obtained against her in the civil proceedings before Maxwell J was obtained by fraud. I have no doubt that it is primarily her attempts to ventilate that belief, and to pursue litigation with regard to it, that has led to the present application that she be declared a vexatious litigant. The other matters that I This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 have listed, and have been considering, appear to be put forward as further E evidence of the defendant’s alleged propensity, and as being relevant to the exercise of my discretion, in the event of my finding that the requirements of the section have been satisfied, rather than as themselves warranting the making of the order sought. Steps taken by the defendant in consequence of her assertion of perjury and conspiracy, include an application to have the judgment in the civil action set aside on the ground that it was obtained by fraud, and separate proceedings instituted with a view to the committal of the persons against F whom the allegation is made, and for the recovery of damages from them. I propose to complete my review of the other matters upon which the plaintiff before me relies, and then to return to this critical aspect of the case. “Scandalous” material: In addition to the specific complaints raised by the plaintiff with regard to G the various proceedings relied upon as relevantly vexatious, and referred to above, many of the pleadings and affidavits filed in support by the defendant in those matters, were described as containing scandalous material, or as scandalising the court, or being embarrassing, irrelevant, or otherwise objectionable. There is no doubt that many of the defendant’s documents 496 SUPREME COURT99 NSWLR 999] ([1988] 14 41 are aptly so described. This, it was argued, also went to the vexatious nature of the proceedings. I have grave reservations about that proposition. A As is clear from the earlier references to Commonwealth Trading Bank v Inglis that type of abuse of process is already catered for by the court’s inherent powers (and by Rules of Court). That does not preclude the possibility of overlap, and of the position being that s 84 gives additional powers to deal with that same situation. However, it must be borne in mind that s 84 also requires that there be an absence of reasonable ground for the institution of the particular proceedings under consideration, and the B presence of scandalous material cannot of itself establish that. If the litigant who has reasonable ground for the institution of proceedings, pursues them in what might properly be regarded as a vexatious manner, that is not sufficient to attract the provisions of s 84. Reliance on “scandalous” material may, in many cases, be evidence of lack of reasonable ground. In others, it may be evidence of malice or ulterior motive (neither of which is alleged here). But I do not believe that it has direct relevance to the questions I have to determine. C It is at this point that I revert to the passage from the judgment in Re Langton referred to by Yeldham J in Hunters Hill Municipal Council v Pedler. The relevant passage, in [1966] 1 WLR 1575 at 1578; [1966] 3 All ER 576 at 577, reads: “… There were apparently no less than sixteen interlocutory applications, and it is clear from the judgment of Rees J in that action D that he at any rate considered that the manner in which the proceedings had been conducted by the respondent were very vexatious and burdensome on the defendants. I should say that the defendant in that action were not only the executors but two other beneficiaries under the will of 1947, namely, a Mrs Halewood, who I think is the respondent’s sister, and Mrs Irvine. This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 The issue in the case was fully litigated; it occupied a number of days, and in giving judgment Rees J pronounced in favour of the will of 1949 E and said that he had reached the conclusion that that will had been properly executed in accordance with the Wills Act and at a time when the deceased had full testamentary capacity. Despite the fact that it may be said that the manner in which that action was conducted was vexatious, it must be remembered that the respondent acted in person, and, not only that, but that the action itself could not be said to be a vexatious action; it was one which the respondent was fully entitled to F litigate and did litigate and accordingly, so far as these proceedings are concerned, I ignore that action except as a matter of history.” The distinction between an action which is vexatious, and an action which is conducted vexatiously, is clearly made, and with respect I agree that it is a valid and pertinent distinction for present purposes. The extent of the powers of the Court to control such matters without recourse to the provisions of the Supreme Court Act, s 84, and without G interfering with the right of the litigant referred to by Lord Parker, is well illustrated by the orders made by Holland J in the R De W Kennedy (Finance) Pty Ltd v Ley. NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 497 42 The fraud, perjury and conspiracy matters: A These matters can be considered under two broad headings, viz: 1. Proceedings designed to have the judgment in the civil trial set aside on the ground that it was obtained by fraud. 2. Proceedings against some nineteen persons, allegedly involved in one way or another in the fraud, perjury and conspiracy complained of, and seeking that they be punished and ordered to pay damages. Under each of these heads there were a number of proceedings — B original, interlocutory and appellate. The attempt to have the judgment in the civil trial set aside, began with a summons taken out in the Court of Appeal on 7 May 1986. The appeal from that judgment on grounds of error of law, in particular wrongful rejection of evidence, was already on foot. The application sought to have the judgment set aside by reason of “fraud, perjury and conspiracy to pervert the course of justice”. It was remitted by the Court of Appeal to the Equity Division, where Miss Wentworth then filed a statement of claim and C later an amended statement of claim which was struck out by Young J on 19 June 1986. In his judgment Young J encapsulated the basis of Miss Wentworth’s claim as follows: “It can be seen that in essence the plaintiff says that the verdict reached at the trial came about because the defendant instigated a conspiracy which involved not only a large number of witnesses but D also several lawyers and which involved at least one judge, the Court, the Police Department and a few doctors either not performing their duty or being involved in activities which to say the least would be disreputable.” It does less than justice to his Honour’s reasoning, but is sufficient for present purposes, to say that in concluding that the claim was without merit,

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 his Honour had reference to two principles of law, viz: 1. in order to maintain an action to set aside a judgment on the ground of E fraud, the plaintiff must adduce evidence of facts discovered since the judgment which raise a reasonable probability of success (Birch v Birch [1902] P 130, applied in McHarg v Woods Radio Pty Ltd [1948] VLR 496); and 2. perjury alone will not suffice as a ground upon which a judgment will be set aside: Cabassi v Vila (1940) 64 CLR 130. A good deal of the material upon which Miss Wentworth sought to rely F was held to be scandalous, and it seems would have been struck out for that reason in any event. There followed an unsuccessful appeal to the Court of Appeal (Wentworth v Rogers (No 5) (1986) 6 NSWLR 534), and an application for special leave was heard in the High Court on 12 June 1987. In the High Court, Miss Wentworth was represented by senior counsel, who proposed to argue that Young J and the Court of Appeal were in error in holding that a party who seeks to establish that a judgment should be set G aside due to fraud must establish that the claim is based on newly discovered facts. No doubt weight of authority was against the applicant, but that falls far short of making the proceedings — at first instance, before the Court of Appeal, or in the High Court — vexatious. The proposition to be argued 498 SUPREME COURT99 NSWLR 999] ([1988] 14 43 was that there had been confusion between two separate rules of law, one relating to the setting aside of judgments on the ground of fresh evidence, A and the other to the setting aside of judgments on the ground of fraud. Her counsel had as a starting point, observations made by Menzies J in McDonald v McDonald (1965) 113 CLR 529. The first relevant passage is at 542: “… This proposition, which relates only to the granting of a new trial on the ground of the discovery of fresh evidence, leaves untouched the rule that, if by any means it be affirmatively proved that the earlier B judgment was tainted by fraud, it will, without more, be set aside.” The second passage is (at 543): “… For the reasons which I have given, I regard as too narrow the learned author’s propositions (i) that ‘fraud as a ground for review is no exception to the rule that review can only be based upon new evidence’, and (ii) that a judgment will not be set aside on the ground of fraud unless it is established by evidence (a) newly discovered since the trial; (b) which could not have been found by the time of the trial by the C exercise of reasonable diligence; and (c) which would have produced an opposite result at the earlier trial.” Whatever its chance of success, there was at least a point to be argued. It would be an unhappy situation indeed, if one could only argue a unique, doubtful, or “unlikely” proposition of law, at risk of being declared vexatious. Counsel did in fact begin to argue the proposition I have referred to D above, at the special leave hearing. Ironically it was Miss Wentworth’s success in her appeal against the judgment in the civil trial, which precluded him from fully developing it. The High Court took the view that the appeal having succeeded, and the judgment having been set aside, there was no purpose to be served by allowing special leave, as the object of the

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 proceedings in the High Court was to have Young J’s decision reversed, and to obtain an order setting aside a judgment, which by this time had already been set aside on other grounds. E For the foregoing reasons, I conclude that, so far as the questions of law involved are concerned, there was nothing which would justify describing these proceedings as “utterly hopeless”, or instituted without any reasonable ground. It remains to be considered whether there was any reasonable factual basis for them. That is a matter to which I will revert after outlining the proceedings instituted by Miss Wentworth against the nineteen persons alleged to have been involved in the fraud, perjury and conspiracy to which F she refers. The questions of fact are common to both matters. There were three sets of such proceedings, in all of which Miss Wentworth was unrepresented. They covered a considerable number of allegations against the many respondents. It is unnecessary to analyse them all. On 7 October 1986, Miss Wentworth by notice of motion sought a variety of orders against seventeen respondents. The nature of the orders sought is illustrated by those sought against Mr Rogers, viz that he committed for G contempt of court, perjury, attempting to pervert the course of justice by false swearing, and conspiring with legal advisers and officers to pervert the course of justice. NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 499 44 On 16 June 1987, by a further notice of motion there were similar and A further allegations made, and similar and further orders sought, against the same seventeen respondents and two additional parties who were joined. The nineteen respondents include members of the Rogers and Wentworth families; solicitors, doctors and a police officer who were connected with the original complaint of 1977; and lawyers involved in the subsequent proceedings. The burden of everything that was alleged was that each of the respondents had, in one way or another, been involved with some or all of the others, in a concerted effort to thwart Miss Wentworth’s vigorous B pursuit of redress for the alleged assaults of which she complained. The language used by Miss Wentworth in stating her grievances does not suffer from undue restraint or reticence. Some of the orders sought are inappropriate, unprecedented and beyond the powers of the court. Lawyers would describe some as grotesque. By way of example, she sought against one respondent, a serving police officer, that he be removed from the Police Force of New South Wales permanently, and be declared to be a disgrace to C the Police Force of New South Wales. The third of this set of proceedings was a further notice of motion of 3 July 1987. This was in similar vein, and also contained a complaint of what was alleged to be an improper disclosure of the contents of a no bill application relating to the criminal trial, to a judge hearing one of Miss Wentworth’s matters in Equity. I am in no doubt that there was considerable abuse of process involved in all three proceedings. “Scandalous”, “embarrassing”, and the other adjectives D commonly used in this connection, were all well earned by these efforts by Miss Wentworth. It is no surprise that on 22 July 1987 they were all dismissed by the Court of Appeal, whose judgment of that date was before me. The unacceptability of the procedures adopted, is illustrated by the following passage from the judgment of Clarke JA: “The collection of a number of criminal and civil charges against a This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 large number of respondents in an initiating process in an appeal court E and the obvious circumvention of the processes of the law designed to ensure that the rights of those persons charged with serious charges are properly protected is in my opinion a blatant misuse of the court’s process.” What was Miss Wentworth doing? I think that the answer has to be given in two stages. First, she was endeavouring to pursue litigation with a view to redressing F what she asserted was a very serious wrong which had been done to her, and which had brought about, and threatened to reproduce, a grave miscarriage of justice in her substantive litigation against Mr Rogers. Secondly, in the course of doing that, she was thrashing about and lashing out wildly, with insufficient regard for the rights of others, and with a lack of understanding of the relevant principles of law and procedural requirements. It is the second of those matters — the manner in which she went about her litigation — that led to the considerable abuse of process which was G appropriately dealt with in the Court of Appeal on 22 July 1987. The substance of Miss Wentworth’s allegations, however, is a different matter. There is no abuse of process necessarily involved in the making of allegations, no matter how serious, against persons in high places. The courts 500 SUPREME COURT99 NSWLR 999] ([1988] 14 45 must be, and are, prepared to receive and deal with such allegations. The courts must not be, and are not, outraged or affronted by them. Whether the A defendant be barrister, doctor, policeman or judge, or whether he be “The Humblest In The Land”, the questions, for present purposes, are the same. Are the allegations totally unsupportable? Is the claim “utterly hopeless”? Is it made without any reasonable ground? It is to those questions that I now turn, in considering the fraud/perjury/conspiracy allegations. The factual basis — reasonable grounds? The nature of Miss Wentworth’s assertions has only to be stated, for their B extreme gravity to be apparent. Despite the fact that in the course of day-to-day litigation we frequently hear conflicting evidence in circumstances suggesting the likelihood that some of it is deliberately false, it is unusual for an allegation of perjury, and of conspiracy to pervert the course of justice by organised perjury, to be made and pursued as strenuously as it has been here by Miss Wentworth over a period now exceeding two years. C As an initial reaction, it is easy to label her allegations as bizarre; and she seeks to cast her net so widely that in many respects the initial reaction that the allegations are highly improbable, may well remain, even after a closer scrutiny of them. The manner in which Miss Wentworth has sought to go about the unusual burden she has cast upon herself, has been of no assistance to her cause. Her procedural blunders, and the extravagance, and at times inappropriateness, of her language, have understandably brought her into conflict with those to whom she might be expected to turn for D assistance. They — and I include her own legal advisers and the courts themselves — have come from time to time to be included among those against whom the allegations of impropriety are made. From a reading of many of the documents by means of which Miss Wentworth has instituted legal proceedings (or pursued interlocutory

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 relief in proceedings already instituted), and affidavits by which she has sought to support her various applications, it would be easy to conclude, not E only that there is a significant element of vexation, but also that she has become obsessed by the litigation and its subject matter, and that much of her outpourings flow from a fertile imagination, stoked by an abnormal capacity for groundless suspicion. I say that it would be easy so to conclude. It is another matter whether such conclusion would be warranted after a thorough analysis of her complaints and allegations. Even the most difficult, irritating and frustrating of litigants, can be the victims of wrongs perpetrated by others. When they claim that they have F been wronged, it is only in the rarest of cases, in my view, that there should be any fetter placed upon their right of access to the courts to pursue the appropriate remedies. In approaching the task of determining whether Miss Wentworth’s allegations are manifestly groundless, or fit whatever of the available epithets one may choose, I feel somewhat inhibited by the fact that a new trial has been ordered of the matters litigated before Maxwell J, and G accordingly a jury may be called upon to determine matters the prima facie merits of which I would be considering. On the other hand, those inhibitions are lessened by the fact that a good deal of the relevant material is to be found in judgment of the Court of Appeal already published. NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 501 46 The starting point must be that there is — or was — a sound prima facie A case in support of Miss Wentworth’s allegations of aggravated assault. That that is so is evidenced by the committal order that was made after the necessary intervention of the Court of Appeal: Wentworth v Rogers [1984] 2 NSWLR 422. The material deemed capable of constituting that prima facie case, is set forth in the judgment of Glass JA (at 428): “The plaintiff’s evidence at the committal proceedings, if accepted, was capable of establishing the following facts. A domestic dispute with B the defendant culminated in a crescendo of violence in which he kicked her a number of times in the back, sooled the dog on to her and threatened to kill her. He next pulled off her clothes, forced her down on the bed and thrust a battery powered dildo into her vagina. He then subjected her to forcible anal intercourse. He later removed his penis from her anus and inserted it into her vagina alongside the dildo and continued until ejaculation. As the law then stood, cohabitation in marriage was a bar to the commission of rape but not buggery. C Although these incidents and their painful effects were described in florid detail, she was not cross-examined to suggest that she was not telling the truth as to what had happened. Corroborative evidence was given by Mrs Niesche and Dr Niesche, that she had come to their home in a distressed condition complaining that she had been raped. Mrs Niesche drove her to RPA Hospital Outpatients’ Department. The hospital notes refer to ‘alleged assault, D attacked by dog/husband, puncture marks hand, claw marks forearm, tenderness over spine’ but do not refer to any complaints or examination respecting anus or vagina. A solicitor testified that on the following Tuesday, which was the first working day after a long weekend, the plaintiff came to his office with the defendant. In his presence she claimed that he had given her a hiding, set the family dog upon her, raped her, used a dildo on her and committed an act of This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 buggery. The defendant had said words to the effect: ‘It’s all my fault. E It’s all true.’ He also said that he might as well jump out the window.” It would appear from that material that potential witnesses capable of supporting Miss Wentworth’s case are, or include, Miss Wentworth herself, a doctor and his wife, and a solicitor, who combine to provide direct evidence of the wrongs alleged, and evidence of complaint and admission. An expectation that there would be other evidence, and other witnesses, available to support Miss Wentworth, arises from four documents which F were exhibited before me, and which were considered in the Court of Appeal in Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, where they were referred to as MFI’s 8, 9, alpha and beta respectively. There may be limits to the use to which those documents could be put in evidence against persons named in them, in the course of any contemplated proceedings arising out of the allegations of fraud, perjury and conspiracy, but for present purposes they are available to found an expectation that there are a number of people, including a solicitor, who could give significant evidence in support of the G assault allegations. At the heart of Miss Wentworth’s allegations of fraud, perjury and conspiracy, is the failure of those witnesses to come up to those expectations at the trial before Maxwell J. Some apparently asserted lack of recall; others 502 SUPREME COURT99 NSWLR 999] ([1988] 14 47 gave evidence at variance with their earlier statements. The number of witnesses, or potential witnesses, concerned, and the relationship or A association between and among them, are advanced as the basis for an inference that the position that they took was the result of concert among them. A potentially critical witness at the civil trial, was a solicitor, who is now one of those against whom Miss Wentworth makes her allegations. In order to understand the significance that his evidence might have had, it is necessary to appreciate the manner in which Mr Rogers’ case was presented to the jury. On his behalf it was put that Miss Wentworth had made no B complaint of sexual assault at the time, and that what she alleged before the jury was the product of subsequent invention. That appears from a passage of the judgment of the Court of Appeal in Wentworth v Rogers (No 10) to which I shall shortly refer. The solicitor was called on Miss Wentworth’s behalf in the civil trial, apparently for the purpose of giving evidence that Miss Wentworth had in fact complained to him shortly after the events, and that her complaints C included the very sexual assaults upon which she relied at the trial. He failed to come up to expectations. I quote from the Court of Appeal judgment (at 401): “… He recalled having seen her at her aunt’s place on the Sunday or Monday of the long weekend and that she had spoken to him about the events of the Saturday. The only recollection he had of what she said was that her husband had tried to kill her.” D Miss Wentworth’s counsel sought to make use at the trial of the MFI documents referred to above, or some of them. They included a letter written by the solicitor witness, and two documents prepared by him and apparently in his own handwriting. All three acknowledged that Miss Wentworth had complained to him of the sexual assaults upon which she

This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 was seeking to rely at the trial. The witness’ own documents did not, he said, assist his recollection with regard to the nature of the complaint, and attempts by Miss Wentworth’s counsel to make further use of the E documents, or to have the witness declared hostile, were unsuccessful. It was the trial judge’s rulings on questions of evidence at that stage which ultimately led to the success of the appeal. In dealing with this matter, Glass JA delivering the judgment of the Court of Appeal in Wentworth v Rogers (No 10) said (at 407): “… The contemporary affidavits drafted by the witness in 1977 recount in florid detail his client’s instructions that the assault upon her F contained sexual ingredients of the most exceptional character. In 1981 he was able to recall her allegation that the defendant had forced her to have anal intercourse and had used a dildo on her. At the trial in 1985 he told the defendant’s counsel that he could not recall ‘any complaint by her of any activity of a sexual nature’. In re-examination he was asked to read his 1981 document. He was then reminded of his answer and asked what his recollection was after having read it. The document failed to refresh his memory. G Solicitors receive many complaints by wives regarding the sexual behaviour of their husbands. The use of a dildo not as an instrument of sexual gratification but as a weapon to inflict hurt and degradation is by NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 503 48 any standard an exceptional complaint. According to the witness the A memory of it lasted for four years but not a further four years and after eight years was incapable of revival. After making full allowance for the advantage enjoyed by the trial judge of observing the witness’ demeanour, we are satisfied that the witness was withholding material evidence and should have been treated as hostile.” The extent to which this withholding of material evidence (as the Court of Appeal found it to be) undermined the case which Miss Wentworth was seeking to put, and may well have provided the basis for Mr Rogers’ success, B is highlighted by the following further passage from the same page of that Court of Appeal judgment: “… The existence of this void in relation to other evidence of her complaints assumed critical significance before the jury. Counsel for the defendant armed with the transcript of evidence given at the criminal trial repeatedly suggested in cross-examination that her complaints at the time had no sexual component. He put that a Dr Abrahams who C saw her at Royal Prince Alfred Hospital noted only a dogbite on her wrist, that her aunt testified that no complaint was made to her of sexual assault, that Mr W C Wentworth had given evidence recalling a complaint of assault only, that Dr Niesche testified that he recalled no complaints of rape, buggery or dildo, that Dr Broughton had no record of any complaint of sexual assault. The husband’s case as put in her cross-examination was that her more sensational complaints about his D behaviour were not voiced to anyone at the time. His evidence was that he had committed no assault but had merely fended off violence directed at himself. Since the plaintiff and defendant were the only eye witnesses the contemporary complaints made to others were given special importance. It was in this evidentiary setting that the evidence of (the solicitor) was of pivotal importance since he had according to all four excluded documents been given instructions by her which in This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 almost all respects matched the evidence she gave before the jury.” E In the light of those observations made by the Court of Appeal, I have no difficulty in concluding that there is substantial material — certainly enough to constitute a reasonable ground — supporting allegations of the type made against the solicitor by the defendant. I appreciate that the conduct of one witness cannot support an allegation of conspiracy, and that unless it can be shown that Mr Rogers was involved, it could not be established that he obtained a judgment by fraud. Nonetheless a starting point to F Miss Wentworth’s case can be seen. It is an important starting point, as if the facts are as the solicitor’s own documents suggest, it is not unlikely that there are other persons among the nineteen named by Miss Wentworth, who were also in a position to know of her early complaints of sexual assault. It must be understood that I am not seeking to resolve any of these questions. I am simply seeking to establish whether these very serious allegations which the defendant makes, have any basis at all, or whether G they are properly to be regarded as without any reasonable ground, so that any relevant proceedings instituted would be “utterly hopeless” and vexatious. I have not heard the solicitor, and of course I do not purport to make any finding against him. 504 SUPREME COURT99 NSWLR 999] ([1988] 14 49 I do not propose to analyse in detail the material, if any, which is available and might be capable of implicating other persons named by A Miss Wentworth in the alleged conspiracy. I can, however, mention three other matters which were canvassed at the hearing. The solicitor to whom I have been referring is not the same as the solicitor referred to as having testified at the committal proceeding that Mr Rogers had made a relevant admission to him. That solicitor, I am told, gave evidence at a later hearing, and in that evidence he did not attribute to Mr Rogers the words “it’s all true”. There is compelling evidence of forgery, B or at least of a material alteration, in a relevant hospital record. And the passages from two Court of Appeal judgments which I have quoted above, disclose an apparent change of position by a doctor as to the nature of the complaint made to him. As I say, I do not propose to go any further into an analysis of the material available against the various persons named. In view of the conclusion at which I have arrived as to the fate of the present proceedings, I am prepared to assume for present purposes (without so finding), that there C was no reasonable ground for the institution of proceedings against some of those named by Miss Wentworth, and that those proceedings were relevantly vexatious. Before I consider the consequence of that assumption, and of my regarding other proceedings (referred to earlier) as also vexatious for the purposes of the section and instituted without any reasonable ground, there is one further observation I would like to make. It is this. It is easy, but can D be dangerous, to come to a conclusion that there is no reasonable ground or evidence to support an allegation, in proceedings such as these, where it may not be possible thoroughly to consider all relevant material in each of so many separate matters. This is graphically illustrated by what occurred in the Court of Appeal with regard to Miss Wentworth’s complaint that the solicitor I have mentioned was deliberately withholding evidence in the civil This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 trial. That Court twice considered that matter. The first occasion was on 3 E October 1986, in its judgment on the appeal from Young J’s decision striking out the defendant’s statement of claim. That judgment is reported, but in part only, at (1986) 6 NSWLR 534. The unreported portion of the judgment includes a consideration of some of the factual material upon which Miss Wentworth was seeking to rely. Dealing with the solicitor’s evidence about the complaint the defendant had made to him, Kirby P, with whom Hope and Samuels JJA agreed, said (at 17 of the transcribed F judgment): “The solicitor might simply have forgotten what the appellant had told him when he gave his evidence.” On the other hand, when the same matter was considered in the appeal from the judgment in the civil trial, and the evidence was presumably subjected to closer scrutiny, the proposition that he “might simply have forgotten”, seems to have been rejected. I repeat part of the passage quoted earlier from the judgment of the Court, delivered by Glass JA: “… According to the witness the memory of it lasted for four years G but not a further four years and after eight years was incapable of revival. After making full allowance for the advantage enjoyed by the trial judge of observing the witness’ demeanour, we are satisfied that NSWLR) ATTORNEY-GENERAL v WENTWORTH (Roden J) 505 50 the witness was withholding material evidence and should have been A treated as hostile.” The other members of the Court were the President and Hope JA, both of whom had been parties to the earlier decision. Conclusions: After the above review of the matters relied upon by the plaintiff, those which I regard as vexatious proceedings instituted without any reasonable grounds, within the meaning of s 84, are: B 1. Proceedings for contempt against Messrs Sly & Russell. 2. Proceedings for contempt against Mr Rares and Mr Bartos. 3. Proceedings against some of the persons named in the fraud/perjury/conspiracy matter (assumed for present purposes). These form but part of the considerable body of litigation for which Miss Wentworth has been responsible as she has pursued her claim against Mr Rogers. Considering the vexatious proceedings in that context, I do not C regard it as appropriate to conclude that the defendant has habitually and persistently and without reasonable ground instituted vexatious proceedings. What she may properly be said to have done habitually and persistently, is vigorously pursue her claim, and avail herself of what she sees as every appropriate avenue of litigation towards that end. In the process, she has transgressed into the area of s 84 vexation from time to time. That however, in my view, does not make the institution of vexatious proceedings something done habitually and persistently by her. D If I am wrong in my interpretation of “habitually and persistently”, or in my application of a correct interpretation of that expression to the facts of this case, I would still not make the order sought. I do not believe that in all the circumstances I should exercise my discretion in favour of the plaintiff. Relevant considerations include the following. 1. The basic substantive litigation, namely the committal proceedings and This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8 the common law trial, are not properly to be regarded as either vexatious or E instituted without any reasonable ground. 2. In those proceedings, and the various appeals to which they have given rise, the defendant has had significant success. 3. Other and less drastic measures are available to protect the court from such abuse of process as has occurred, or may reasonably be regarded as threatened. 4. The matters in issue between the defendant and Mr Rogers remain to F be finally disposed of, and I am not satisfied that freedom to pursue her ancillary allegations against Mr Rogers and others, is not necessary to a proper pursuit of Miss Wentworth’s substantive claim. 5. Some at least of the apparently more bizarre of the defendant’s allegations, seem to be prima facie supportable. 6. Those against whom the defendant may proceed in consequence of her assertion of a conspiracy as outlined above, will have available to them the usual opportunities to present defences to those claims, and to seek orders to G strike out pleadings or for summary dismissal, if any claim is made which is manifestly unsupportable. 7. There has not been such an array of proceedings improperly brought by the defendant against any of her potential opponents in future litigation, as 506 SUPREME COURT99 NSWLR 999] ([1988] 14 51 to warrant the making of the order sought, for the purpose of their special protection. A 8. The defendant has generally — if not always — been unrepresented in the offending litigation. Accordingly I decline to make the order sought, and the plaintiff’s application is dismissed. I will hear counsel, if they wish, before making any order as to costs. If Miss Wentworth appreciates that she has been sailing close to the wind, and now realises the virtues of restraint, and the value of having a pilot aboard, these proceedings may prove to have served a useful purpose. B Before I leave the matter, I would like to record my appreciation of the considerable co-operation and assistance which I received from counsel on both sides of the record. As must be obvious from the length and content of this judgment (which probably only skims the surface), there was a vast amount of material to be absorbed and dealt with in argument, and no shortage of questions of law to consider. I am indebted to Mr Gyles and Mr Gray, and their respective juniors, for their diligence in preparing C summaries and chronologies on demand, and for the clarity with which they presented their respective arguments, to what might at times have seemed a singularly obtuse bench. Summons dismissed Solicitors for the plaintiff: H K Roberts (State Crown Solicitor). Solicitors for the defendant: Carneys. D N J HAXTON, Barrister. This version of 14 NSWLR 481 accessed by Mr Wojciech Jajdelski on 29 Apr 2021 from IP address 10.112.0.8

G 52

IN THE HIGH COURT OF JUSTICE No. CO/4380/98 IN THE QUEEN'S BENCH DIVISION CROWN OFFICE LIST DIVISIONAL COURT

Royal Courts of Justice The Strand London

Wednesday 16th February, 2000

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES (LORD BINGHAM OF CORNHILL) AND MR JUSTICE KLEVAN

− − − − − − −

HER MAJESTY'S ATTORNEY GENERAL Applicant

− v −

PAUL EVAN JOHN BARKER Respondent

− − − − − − − − −

Computer Aided Transcription by Smith Bernal, 180 Fleet Street, London EC4 Telephone No: 071−421 4040 (Official Shorthand Writers to the Court)

MR ROBIN TAM (instructed by the Treasury Solicitor) appeared on behalf of THE APPLICANT THE RESPONDENT appeared in person

J U D G M E N T

(As Approved by the Court) 53

1. THE LORD CHIEF JUSTICE: The Attorney General seeks a civil proceedings order under section 42 of the Supreme Court Act 1981 against Mr Paul Barker. It is unnecessary for present purposes to recite the familiar terms of section 42(1)(a) and (b), save to point out that before the court can make an order under the section it must be satisfied that the statutory precondition of an order is fulfilled, namely that the person against whom the order is sought has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings or made vexatious applications whether in the High Court or any inferior court and whether against the same person or against different persons.

2. If that condition is not satisfied, the court has no discretion to make a civil proceedings order. If the condition is satisfied the court has a discretion to make such an order, but it is not obliged to do so. Whether, where the condition is satisfied, the court will exercise its discretion to make an order, will depend on the court's assessment of where the balance of justice lies, taking account on the one hand of a citizen's prima facie right to invoke the jurisdiction of the civil courts and on the other the need to provide members of the public with a measure of protection against abusive and ill−founded claims. It is clear from section 42(3) that the making of an order operates not as an absolute bar to the bringing of further proceedings but as a filter.

3. The respondent, Mr Barker, lived from 1988 until August 1993 with a partner, Miss Jane Boyce. They had two children, a girl, "F", who was born on 4 April 1990 and who will soon be 10, and a boy, "T", who was born on 27 February 1992 and who will even sooner be 8.

4. The facts relating to Mr Barker and his partner and the children were set out at very considerable length by His Honour Judge Ansell in a judgment delivered on 3 November 1997. It is unnecessary and undesirable for present purposes to give more than the briefest summary.

5. In August 1993 Jane Boyce left Mr Barker with the children. By that stage their relationship had to a large extent broken down. Following the separation there were difficulties over contact and at the end of 1993 the children went to live with Mr Barker. There were continuing difficulties over contact and the mother felt that in all the circumstances it was better if she stopped seeing the children, although her own mother continued to do so. There was evidence that Mr Barker behaved in an aggressive, disruptive and abusive way and he found himself involved in altercations with the staff, the governors and some parents at the first school which the two children attended. He had a quarrel with the headmistress. He was banned from the school. He broke the ban and was warned by the police. In October 1996, following a further altercation, the children were withdrawn from that school and did not attend school again until the end of January 1997. At the new school further difficulties arose and there were real anxieties about various aspects of Mr Barker's upbringing of the children.

6. On 10 February 1997 His Honour Judge Connor made an emergency protection order in relation to the children who in August 1997 went to live with their mother. There were continuing 54

difficulties in the arrangements for contact. Such was the brief background when on 3 November 1997 His Honour Judge Ansell sitting in the Watford County Court made a residence order in favour of the mother, ordered contact with the father, and made a prohibited steps order. We have his detailed judgment in the bundle, and note his conclusions at page 245 of that bundle, and his order at page 248, neither of which it is necessary to recite. It is, however, relevant to note that there was evidence, as the judge found, that Mr Barker was suffering from mental illness, and that may explain much of what took place.

7. On 15 December 1997, six weeks after the judge's order and judgment in the family proceedings, Mr Barker issued eight writs. Seven of those related directly or indirectly to the family proceedings; one concerned a negligence claim which had been made by Mr Barker against solicitors and which had been settled on terms which Mr Barker had come to regard as disadvantageous. The writs were issued against the chairman of the governors of the children's first school, against the solicitor who had advised Mr Barker in the family proceedings, against an officer of the Hertfordshire County Council Social Services Department, against the solicitor who had acted for Mr Barker in the successful negligence claim, against another officer of the Hertfordshire County Council Social Services Department, against the head teacher of the children's second school, against a third officer of the Hertfordshire County Council Social Services Department, and against yet a fourth officer of that department.

8. It is unnecessary for present purposes to go in detail into the minutiae of the claims made against each of these defendants, but it is relevant to give some indication of the tenor of these claims or some of them and the manner in which they were drafted. I take as an example the claim made against a Mr Kellett, an officer of the Hertfordshire County Council Social Services Department. The endorsement of the writ against him claimed negligence/damages and read:

Tampering with Evidence

The letters of Steve Taylor of 11 December 1996 that a ‘disclosure of papers order' shall reveal protecting Mrs Hallahan rather than putting the welfare of my children first

Telling his secretary to remove them from my bundle and then stating in an investigation that Andrea is ‘conscientious, dedicated and most efficient member of staff. I do not doubt her honesty or integrity'."

9. The statement of claim, which was shorter than in many other actions, again bore the heading "Tampering with Evidence" and read:

I refer to Barbara Barret's statement used in evidence in court (comprehensive assessment) Watford County Court, case No 97CC027 and Meg Carter's investigation into complaints, see writ of summons B1949 to be used in evidence in the Royal Courts of Justice and at my appeal of His Honour Judge Ansell's orders Watford County Court made on 29th October − November 3 1997.

Obviously I expect a documented report into the reasons for his absence from work 55

following his statement to the Watford County Court to be used as evidence as all correspondence from him to me to be checked against access to records."

10. The other writs were of the same character.

11. The issue of those proceedings was only a beginning. Two days later, on 17 December 1997, Mr Barker issued eight more writs. The defendants in this case were the headmistress of the children's first school, His Honour Judge Ansell, the solicitor who had advised Mr Barker on his prospects of an action against the solicitor who had handled the negligence claim, the solicitor who had advised Mr Barker on the merits of a defamation claim against the headmistress of the children's first school, the solicitor who represented Mr Barker in the family proceedings, the Hertfordshire County Council County Secretary's Department, the Hertfordshire County Council Social Services Department, and the solicitor who had represented the children at the family hearing. Again a sample of the nature of these proceedings may be given. The endorsement of the writ against Judge Ansell was headed "Negligence/Damages" and read:

Perverting the [course] of justice at the Watford County Court, His Honour Judge Ansell, the last of 5 judges to have sat through this case, ordered Barbara Barret of Social Services to bring in her notes of an interview with myself as a matter of great urgency, notes taken on 20th March 1997 following a contact session with my children on 17 March 1997 that was supervised by Diane Hanlon, selective note taker.

Coincidentally this happened to be the last note taking session due to the fact I mentioned to my daughter the matters regarding Mrs K R Hallahan, Barbara Barret tried to palm me off with some note regarding the orange book assessment that I had asked for much earlier. She had refused to give them to me. His Honour Judge Ansell was blind to this. Further after I complained the notes that I asked for were brought into court the next day. These notes of 20 March were photocopies and forged. He knew this."

12. Mr Barker served documents purporting to be statements of claim in most of these actions, and some defences were served. In one instance an error on the part of the court led to the entry of a judgment in default in favour of Mr Barker, which was set aside by the Senior Master when the true facts came to light.

13. On 30 January, 2 February and 11 February 1998 summonses to strike out were issued in six of the actions already mentioned. On 17 February 1998 summonses to strike out were issued by the court of its own motion in nine actions. Two days later, on 19 February 1998, Mr Barker issued summonses in the St Albans County Court against the Senior Queen's Bench Master and the head clerk of the action department of the Queen's Bench central office, complaining of the setting aside and of the default judgment. These summonses were transferred to the High Court. On 20 February 1998 the Treasury Solicitor issued a summons to strike out the claim against Judge Ansell. On 23 February 1998 Mr Barker issued summonses in the St Albans County Court against the solicitor representing the various solicitors whom he had sued. This summons also was transferred to the High Court and very shortly thereafter a summons was issued to strike it out. 56

14. On 27 February 1998 the summonses to strike out came before Alliott J who made an order striking out 19 actions, including two by the court of its own motion. We have a copy of the judgment which he delivered on that occasion. He alluded to the history of the matter and the judgment of His Honour Judge Ansell. He explained the very unusual course which matters had followed and he cited the well−known terms of Order 18, rule 19 of the Rules of the Supreme Court. He was in no doubt that all 19 actions should be struck out.

15. That decision proved to be the spur to further action by Mr Barker who on 18 March 1998 issued a summons in the St Albans County Court against the child psychiatrist who had given expert evidence at the family hearing. That was struck out on 1 May 1998.

16. On 21 October 1998 the Solicitor General authorised this application and a notice of motion was issued in November. Mr Barker sought leave to appeal against the decision of Judge Ansell, but that was refused by the Court of Appeal. He also sought leave to appeal against the order of Alliott J, and that too was refused.

17. On behalf of the Attorney General Mr Robin Tam, in the course of very clear and well prepared submissions, contends that the conditions specified in section 42(1)(a) of the Supreme Court Act are met and that it is appropriate for the court to exercise its discretion to make an order. He submits that the actions referred to do not disclose any reasonable cause of action and each pleading has been wholly defective. He submits that most of these actions have represented attempts to re−litigate decisions adverse to Mr Barker and that he has refused to accept judicial decisions as evidenced by his attempts to sue Judge Ansell and the Senior Queen's Bench Master. He points out that the remedies sought by Mr Barker in his various actions are frequently not such as the court could award, and draws attention to the fact that Mr Barker has issued a large number of separate actions against individual defendants when he could either have sued their employer or have joined them in a single action, drawing attention to this aspect as an indication of the vexatious character of the litigation. Mr Tam also points out that Mr Barker is on income support and as a result is in no position to pay the costs awarded against him and is furthermore excused from paying the ordinary fees exacted on issue of proceedings. He reminds us that on one occasion Mr Barker was heard to indicate that no one would get a penny out of him, and Mr Tam also suggests that Mr Barker has shown an intention to continue in his course of litigious conduct, particular attention being drawn to an occasion on 27 February 1998 when Mr Barker was heard to threaten action for defamation. It is said that in the course of the hearing before Alliott J he said that if the judge decided against him he would sue that judge as well as Judge Ansell.

18. Mr Barker today has appeared before us in person and told us, which I readily accept, that he was very deeply upset at losing his children under the order of the court. He further tells us, and again I would for my part accept, that he was at the time seriously ill. He points out, however, that his resort to litigation was very short− lived and was now two years ago. The burden of all these actions, he says, had a very severe effect on his mental health and resulted in his spending three months in various hospitals. He is now restored to health. He is seeing his children on a regular 57

basis and looking forward to increased contact. He wants to put the past behind him and says that he has no intention of further resort to litigation. He has indeed offered his word to the court that he will not seek to repeat his conduct of two years ago in issuing writs broadcast.

19. I am satisfied on the facts adduced in evidence before us that Mr Barker has instituted vexatious civil proceedings. "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. Those conditions are in my view met in this case. Many of the proceedings show no justiciable complaint and, as has been pointed out, several writs have been issued against individual officers in the same department when one writ would have served against them all.

20. I am furthermore satisfied that these vexatious civil proceedings have been instituted without any reasonable ground. All the proceedings have been struck out; none has gone to trial; none has been settled. Leave to appeal against Alliott J's striking−out order in relation to the 19 actions was refused. In truth, none of these actions could have succeeded.

21. The calendar does, however, reveal that from the issue of the first bunch of eight writs on 15 December 1997 to the issue of the last County Court summons on 18 March 1998 was a three−month period within which this flurry of litigious activity was confined. Only one person, a solicitor, Mr Ryall, was sued more than once. While writs were issued against individual officers of the Hertfordshire County Council, the County Council itself was only sued once.

22. 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.

23. Mr Tam acknowledges that the words "habitually and persistently" connote an element of repetition, but says that that repetition need not be over a long period. I would accept that qualification, but there must nevertheless be that element of repetition and in my judgment it is not shown here. I would accordingly hold that the conditions for making an order under section 42(1) 58

are not satisfied. If however I am wrong in that conclusion I would not in any event exercise my discretion to make an order against Mr Barker. I do not consider that an order is necessary to prevent further abuse by him of the court process. Mr Barker appreciates that repetition of his previous resort to litigation would damage his mental health and disrupt his contact with his children, which is what he cares most about. He also fully appreciates that if he were to repeat his former conduct he would have no defence at all to an application by the Attorney General.

24. Mr Tam points out that the court could make an order for a limited period, as the section expressly permits, or could adjourn the hearing to see if all goes well. Those are possible options. There is, however, no real point in the first course if the court is satisfied, as I for my part am, that Mr Barker will not repeat his previous conduct in the months ahead. I further think that it is better that he should not have the matter hanging over him as a possible source of anxiety. He has told us that he wants to forget about the unhappy events of November 1997 to March 1998, and it is much better that he should do so. He has offered his word to the court that he will not repeat his previous conduct and I for my part would accept him as meaning what he says. I would therefore decline to make any order on this application.

25. MR JUSTICE KLEVAN: I agree.

26. MR TAM: My Lord, may I just have a moment?

27. THE LORD CHIEF JUSTICE: Yes.

28. MR TAM: My Lord, we obviously have no applications arising. The only matter that might arise −− and again I mention this out of fairness because Mr Barker is not represented −− is costs that might arise. If we had succeeded your Lordships know that, as a matter of tradition if nothing else, no order for costs is sought by the Attorney General. I do not know whether Mr Barker makes any application against us, but I mention that out of completeness.

29. THE LORD CHIEF JUSTICE: Well, Mr Barker, Mr Tam is asking whether you are asking for an order for costs against the Attorney General?

30. THE RESPONDENT: No, my Lord.

31. THE LORD CHIEF JUSTICE: You appreciate that you could if you wanted to? It does not mean that we would make an order, but you could ask for it.

32. THE RESPONDENT: I know and I don't ask for one.

33. THE LORD CHIEF JUSTICE: Mr Barker, you understand the effect of that judgment, do you? We are not making the order that the Attorney General is asking us to make. We are accepting your word.

34. THE RESPONDENT: Thank you, my Lord. 59

35. THE LORD CHIEF JUSTICE: But you will not let us down, will you?

36. THE RESPONDENT: No.

37. THE LORD CHIEF JUSTICE: Good. Thank you very much. We did say in the judgment that if you did, the Attorney General would come back and he would be almost certain to obtain an order. Thank you very much. 60

All England Official Transcripts (1997-2008)*

Attorney General v Covey; Attorney General v Matthews

[2001] EWCA Civ 254

(Transcript: Smith Bernal)

COURT OF APPEAL (CIVIL DIVISION)

LORD WOOLF CJ, MAY, JONATHAN PARKER LJJ

19 FEBRUARY 2001

Human rights – Fair trial – Whether civil proceedings order against vexatious litigant breaching right to fair trial – European Convention on Human Rights, art 6.

Practice – Vexatious litigant – Civil proceedings order – Whether making of civil proceedings order in breach of human rights – European Convention on Human Rights, art 6.

19 FEBRUARY 2001

The Applicant in the First action appeared in person

The Applicant in the Second action did not appear and was not represented

J Eadie and A Tolley for the Respondent

Treasury Solicitor

LORD WOOLF CJ

[1] There are before the court two linked applications, the first by Mr Andrew Covey and the second by Dr Barry Matthews. Both are renewed applications seeking permission to appeal against Civil Proceedings Orders made against each of the applicants under s.42 of the Supreme Court Act 1981. The applications were linked to allow the court to consider certain related issues. Those issues are: first, whether Mr Covey and Dr Matthews have respectively, habitually and persistently, and without any reasonable grounds, instituted vexatious civil proceedings; secondly, whether the Divisional Court exercised their discretion properly in making the s.42 orders against each of the applicants; and thirdly, whether the making of s.42 orders is in breach of Sch 1, art 6(1) of the Human Rights Act 1998.

[2] In his application this morning, Mr Covey took the course of stripping off his clothes and throwing water at one member of the court. He has subsequently made oral submissions to the court after giving an undertaking to behave. He has not repeated his misconduct. He has made submissions which have no relevance whatsoever to the issues before the court. However, someone has prepared on his behalf (or he has prepared himself) a detailed skeleton argument which the court has read.

[3] The application in Dr Matthews' case is novel since he has not, in a skeleton argument which was filed on his behalf by counsel who appeared before the Divisional Court, contested that he has generally conducted litigation which was 61 vexatious and unreasonable. He submits that his conduct does not fall within s.42 of the Supreme Court Act because his campaign of litigation was conducted against different individuals. He therefore contends that he does not fulfil the requirements of s.42, which requires conduct to be habitual and persistent. Dr Matthews contends that the mischief that s.42 is designed to prevent is abuse of the system by litigants repeatedly bringing proceedings against the same person or a group of persons and raising the same or similar issues. Dr Matthews says that the Divisional Court unjustifiably and unprecedently widened the principles set out in s.42, as elucidated by Lord Bingham in Attorney General v Barker 2000] 2 FCR 1, [2000] 1 FLR 759.

[4] Section 42 provides so far as relevant:

“(1) If, on an application made 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 civil proceedings, whether in the High Court or any inferior court, and whether against the same person; or

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

(c) instituted vexatious prosecutions (whether against the same person or different persons), 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.”

[5] Section 1A provides:

“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; . . .”

[6] It is common ground that Mr Covey and Dr Matthews are entitled to rely on art 6 of the European Convention on Human Rights which is set out in the Schedule to the Human Rights Act 1998. Section 6 of the 1998 Act provides:

“(1) It is unlawful for a public authority to act in a way which is incompatible with Convention rights.”

[7] Section 6(3) of the Act states that a “public authority” includes a court or tribunal.

[8] Article 6 so far as relevant provides:

“(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” 62

[9] On behalf of Dr Matthews, Mr Pickering accepts that it is clear from the case law that the right given by art 6 is not absolute but may be subject to limitations by a regulation. However, he argues that the limitation must not be such that the very essence of the right is impaired. He therefore submits that s.42 is to be applied and interpreted in a manner which is consistent with art 6. That was accepted to be the position by the Divisional Court if there is any question of conflict with art 6 in the case of Dr Matthews (see para 55 of the judgment), and is also accepted by me to be the position when considering an application under s.42.

The facts

[10] Mr Covey's application for permission to appeal

[11] On 6 October 2000, following a hearing lasting a day and a half, the Divisional Court made the order. It was subject to four exceptions in relation to existing actions in three cases against the Chief Constable of Surrey Police. Those cases are respectively numbered GEU807615, 900342, 901678 and 901124.

[12] In the course of his judgment setting out the reasons why he thought it right to make the order, Buxton LJ, with whose judgment Penry-Davey J agreed, points out that Mr Covey addressed the court on the day of the hearing from approximately 12.45pm to 4.15pm (a total period of two-and-a-half hours). The Lord Justice adds:

“Much of what he said appeared to us to be irrelevant to the detail of the issues before the court and much of it was directed to . . . seeking to re-open the merits of actions already decided against him and of the dispute underlying some but not all those actions . . .”

[13] Mr Covey's submissions to this court this morning make it only too understandable why Buxton LJ felt it necessary to make those remarks.

THE APPLICANT: [14] Get me a jury and see what they say.

LORD WOOLF CJ: [15] His submissions so far as fact was concerned rest upon an assertion of no relevant evidence having been filed.

THE APPLICANT: [16] A load of bollocks.

LORD WOOLF CJ: [17] Some time was taken in reading out factual matters that had already been opened by counsel for the Attorney General. The Divisional Court were unsuccessful in their attempts to limit Mr Covey's submissions to the afternoon. They therefore indicated that he could continue the following morning from 10am up to 11.30am, but no longer. Mr Covey complained of that ruling, but the Divisional Court declined to alter it. In his judgment Buxton LJ stated that the court had in mind the interests of other litigants who had a right of reasonable access to the courts and to the court's time, as well as the needs of the present case. He went on to say:

“We were satisfied that the time allocated would be amply sufficient for us to receive and understand Mr Covey's case.”

[18] The members of the present court have spent a considerable time reading the details of Mr Covey's case. It appears to us that the period of time allowed to Mr Covey in order to consider his arguments as to why an order should not be made 63 were generous and certainly sufficient to enable him to advance any arguments that would have been appropriate.

[19] When the Divisional Court sat at 10am on the second day, Mr Covey presented the court with a 60-page skeleton argument. The court retired to read the document and returned at 10.30 to hear further submissions.

[20] In his judgment Buxton LJ subsequently went on to describe the actions which were the basis for the application. As to the nature of the actions he added:

“Many but by no means all of these actions have, at least as their background, a dispute between Mr Covey and a family called Daubney that appears to have arisen in the mid-1990s. Mr Covey asserts that he had, at least since 1993, been the subject of untrue allegations of sexual perversion by the daughters of that family, that the parents had wrongly supported those allegations and generally harassed Mr Covey and that they had wrongly conspired with the police to harass Mr Covey and to ensure that his complaints remained uninvestigated. Mr Covey also alleges that the father of the family, Mr Terence Daubney, is a Justice of the Peace and that he has misused his position and his supposed influence with the police force in order to handicap Mr Covey.”

THE APPLICANT: [21] Here, here.

LORD WOOLF CJ: [22] Mr Covey has made similar submissions to the court today.

[23] Mr Covey had been made the subject of a restraining order under s.5 of the Protection from Harassment Act 1997. The order was made on the basis that he had harassed members of the family, including Julie Daubney, between June and July 1997.

THE APPLICANT: [24] Point of order, your Honour. The law was passed on 1 July.

LORD WOOLF CJ: [25] The order was made –

THE APPLICANT: [26] I was out of the country at the time.

LORD WOOLF CJ: [27] Would you please keep quiet?

THE APPLICANT: [28] How can I harass them? I wasn't even in the country.

LORD WOOLF CJ: [29] Would you please keep quiet or you will have to leave court?

THE APPLICANT: [30] I was just picking up on a point of law, that's all. The law was passed on 1 July.

LORD WOOLF CJ: [31] Mr Covey, would you please keep quite and not interrupt me?

THE APPLICANT: [32] Am I right? 64 LORD WOOLF CJ: [33] If you do interrupt me, then you will have to leave court.

THE APPLICANT: [34] Please tell this court when the Harassment Act was passed.

LORD WOOLF CJ: [35] The court is going to adjourn.

THE APPLICANT: [36] Fine. The Harassment Act was passed on 1 July. I was out of the country. How can I harass somebody when I'm out of the country? This is a kangaroo court and you are a bent judge.

(The court adjourned for a short time. The applicant left court)

LORD WOOLF CJ

[37] The order was made for the purposes of protecting her and three other members of the family. He was also convicted of common assault, criminal damage and a matter of harassment. For one of those offences he was sentenced to three months' imprisonment. I do not propose to set out the details of the various actions because they are referred to in Buxton LJ's judgment, but Buxton LJ made a number of points with regard to the actions to which I should refer:

(1) While within the limitation period, the actions were all started a substantial period after the conduct complained of.

(2) A number of the actions appear to duplicate each other.

(3) A major number of the actions could probably have been consolidated in a single claim.

(4) All of the actions have been struck out either because of failure to comply with a court order or because they showed no cause of action.

(5) Some of the actions seek to re-litigate issues in relation to which Mr Covey had been convicted.

[38] In his comments today, Mr Covey said that the number of proposed actions had been underestimated by the court; that there were 54 actions in all. When Mr Covey's actions were dismissed, his automatic reaction was to appeal.

[39] The actions fall into different categories. Some were against the Chief Constable of Surrey and the members of the Surrey Constabulary. Mr Covey makes complaint about assaults on him while he was in custody, wrongful arrest, negligence and dereliction of duty in failing to investigate his complaints, harassment and conspiracy to pervert the course of justice, malicious prosecution, actual bodily harm and intimidation of a witness. The reason why there were three exceptions made to the order is that in January 2000 His Honour Judge Cook, sitting at Staines County Court, struck out twelve of the fifteen actions brought by Mr Covey on procedural grounds and because there was no real prospect of success. He left three actions in being. The Divisional Court concluded that those three actions should be allowed to continue.

[40] As a result of a conviction for an assault in respect of the Daubney family, Mr Covey was dismissed from his employment with the Co-Operative Insurance Society. A third group of actions related to this dismissal. There were proceedings before an industrial tribunal and a subsequent appeal to an Employment Appeal Tribunal, actions against the President of the Employment Appeal Tribunal and an action against an employee of the Co-Operative Insurance Society. There was also an action alleging bullying, discrimination and other similar matters by the staff of the Insurance Society. 65 [41] The detailed grounds of appeal relied on by Mr Covey are that by restricting his submissions the court denied him natural justice and contravened art 6(1). He contends that the hearing was not before a fair, independent and impartial tribunal, contrary to art 6(1), in that the law officers, one of whom was responsible for seeking the s.42 order, are consulted as to the appointment of judges to the High Court and are members of the government who made the recommendations regarding the appointment of Buxton LJ and Penry-Davey J.

[42] So far as the hearing today is concerned, the skeleton argument filed on behalf of Mr Covey also contends that I should not hear the present applications because I am disqualified to do so by reason of the fact that when I was a Member of the Bar I appeared for the Attorney General as an amicus curiae in a number of cases when Treasury counsel. I confirm that factually that is the correct position. It is also correct that I appeared in applications under s.51 of the Supreme Court of Judicature (Consolidation) Act 1925, which preceded s.42 of the Supreme Court Act 1981. The fact that I did so does not, in my judgment, in any way disqualify me from hearing this application.

[43] Mr Covey also contends that he should be supplied with a copy of a Bench Memorandum and a summary or “secret briefing” prepared for the court by the judicial assistant. He complains about the court declining to inform him of its contents. He submits that the Divisional Court had misapplied the test laid down in Attorney General v Barker. He also contends that the Divisional Court erred in taking into account the delays in instituting proceedings when they had been instituted within their respective time limits under the Limitation Act 1981, and in making the order under s.42 to apply for an indefinite period.

[44] In the case of Dr Matthews, the Divisional Court gave its judgment on 14 November 2000. The court consisted of Rose LJ and Moses J. In his judgment Rose LJ set out the factual background. He does so relying on a schedule to the affidavit of a Mr Lutterodt filed on behalf of the Attorney General which refers to 33 actions. Rose LJ sets out the nature of the actions and it is therefore not necessary for to me to do so again. However, Rose LJ makes clear that Dr Matthews liberally sprays his litigation among those with whom he has dealings. The period covered by the evidence commences in 1992 and continues until 1999. An example of one feature of the actions is provided by action number 10 against BT. The proceedings focused on the fact that Dr Matthews alleged that he was overcharged the princely sum of £3.65. The action was dismissed by the district judge, but Dr Matthews appealed. Another action was against Texaco Limited for its failure to warn the public of a biological disaster. There was an action against the Law Society claiming damages for denial of access to appropriate legal education.

[45] As was accepted in the skeleton argument by Dr Matthews' counsel, the actions were clearly vexatious. It was not surprising that they were usually struck out. They were then followed by an unsuccessful appeal. In summary, the position is that of the 33 actions which were brought, 25 have been struck out or summarily dismissed, four failed on their merits, and in one there was acceptance of a payment into court. In three actions Grepe and Loam orders were made, preventing Dr Matthews from taking any further steps in the actions. As Rose LJ points out, as at all times Dr Matthews “appears to have been on income support and therefore exempt from court fees” there “has been no realistic prospect of those whom Dr Matthews sued unsuccessfully recovering costs against him.”

The Merits

[46] I commence with Mr Covey. I will deal with his main grounds in turn insofar as I have not already dealt with them.

Article 6

[47] Article 6 is central to the majority of Mr Covey's contentions. There is no doubt that it is necessary for the court to ensure that before any s.42 order is made, art 6(1) is complied with. Mr Covey is entitled to a fair opportunity to put his case before a court which is independent and impartial, and to know the case which he has to meet. He challenges that this has happened. First, he complained about the time limits which were imposed by the Divisional Court. As submitted on behalf of the Attorney General in a skeleton argument prepared by Mr Eadie, a fair and reasonable opportunity does not involve an unlimited and uncontrolled opportunity to address the court. There is inherent in the Convention as a whole the need to balance the interests of the individual against the interests of the general community. If Mr Covey was given unlimited time to make oral submissions, this would be to prejudice other litigants who are waiting to have their cases heard and result in unnecessary expense to the justice system. The Divisional Court allowed him to produce a further 60- 66 page skeleton. The court retired to try and digest that skeleton argument. It is not required to try and digest unlimited written material. Mr Covey had ample opportunity to put forward his case. He has suffered no prejudice since everything which was relevant was placed before the court.

[48] Mr Covey finds it impossible to confine himself to matters which are relevant to the issues before the court. Today Mr Covey insisted on interrupting the court whilst judgment was being given. A litigant has a right to be present in the ordinary way when a court is giving an oral judgment. However, if he behaves in a way which makes it impractical for the court to continue, then there is no alternative but to direct that the litigant be removed from the court.As to the impartiality and independence of the members of the court, the consultation of the law officers prior to the appointment of a judge does not compromise the impartiality of that judge once appointed. Members of a court are in a very different position from that considered in Starrs v Procurator Fiscal [2000] ILRC 718, which was relied upon by Mr Covey in written argument. Here there are full-time members of the judiciary who have taken the Oath of Office of Judges. They have security of tenure and the issues raised in the Starrs' case have no application. There is no legitimate reason which is objectively justifiable to fear a lack of impartiality so far as the members of the Divisional Court are concerned or of this court.In view of the allegation made by Mr Covey, it is useful to consider why applications for an order under s.42 are made on behalf of the Attorney General. The involvement of the Attorney General is intended as a safeguard for the defendant to the application. The Attorney General, in making the application, is acting in his long established constitutional role as the guardian of the public interest. His involvement is an acknowledgement that an application should only be made where there is solid ground for saying that the curtailment of the interests of the individual to have unlimited access to the courts can be justified. There was a time when for this reason an application for what is now a s.42 order was always personally made by the Attorney General for the time being. The burdens of the Attorney General's office today means that this is no longer practical. Instead, the applications are made by one of the counsel nominated by him to act on his behalf. However, the former practice is a reminder of the importance the courts rightfully attach to any interference with the normal rights of the citizen to access to the courts and is also a recognition of the fact that the court appreciates that making a s.42 order interferes with that right.While recognising the importance of what is involved in making a s.42 order, it is also important to bear in mind that the court can always give permission to commence proceedings, and will do so if there are reasonable grounds for bringing the proceedings. It is also necessary to recognise the importance of the protection which s.42 provides for those who would otherwise be the subject of the vexatious litigation.

Bench Memoranda

[49] It is right to assume that in Mr Covey's case before the Divisional Court there would have been a Bench Memorandum prepared by a judicial assistant. One has also been prepared for the hearing before us. It is not the practice for civil courts to disclose those memoranda. Prior to the coming into force of the Human Rights Act 1998, I gave a judgment in Anthony Bryden Parker v Law Society [1999] COD 183. I dealt in some detail with the question of the disclosure of Bench Memoranda. I stressed that if there was any question of a litigant being prejudiced by a Bench Memorandum, then it would be disclosed by the members of the court on their own initiative. There is nothing to suggest that Mr Covey could suffer any prejudice by the non-disclosure of any Bench Memorandum. In his case, as is almost invariably the situation, the memorandum consists of no more than an analysis of the factual material (which is already available to the litigant), reference to relevant legal authorities and principles, and comments which the judicial assistant makes as to the merits of the proceedings before the court.

[50] In consequence of the coming into force of the Human Rights Act 1998 and the need to comply with art 6(1) it was important to reconsider the position of the practice of the court as to Bench Memoranda. In my judgment, art 6 does not change the position from that indicated in the Parker judgment. In that case the court adopted a standard which was at least as high as that required by art 6(1). As was indicated in that case, the court was also adopting the same standard which is adopted in great many jurisdictions of which inquiries were made, including the European Court of Human Rights.

[51] The remaining arguments for Mr Covey are directed to the merits of the decision of the Divisional Court, apart from a new argument which he has advanced before this court based upon the Data Protection Act 1998. In my judgment, Bench Memoranda do not fall within the basic interpretive provisions contained in s.1(1) of the Data Protection Act. In any event, as indeed the skeleton argument acknowledges, so far as manual data are concerned, there are exemptions which are contained in Sch 8 to the Act which continue to apply until 24 October 2001. In my judgment, the Data Protection Act has no relevance with regard to the issues before the court.

[52] I am wholly satisfied that on the material which was before them the Divisional Court could not properly have come to any conclusion other than that a s.42 order was fully justified. That Mr Covey's conduct fell within s.42 was beyond 67 argument, and indeed the court has some sympathy for the Daubney family for their having been subject to the litigation process which they have.

Dr Matthews

[53] Reference has already been made to the fact that the circumstances leading to Dr Matthews' order are unusual because of there not being the usual repeated litigation against a few targets. Instead, there was repeated litigation, but it was directed at a variety of defendants. Before the Divisional Court Dr Matthews was represented. He now no longer has legal aid and so he represents himself. He did not attend today, but he did instruct counsel, who appeared pro bono, to seek an adjournment because of his wish to bring a further application for judicial review. The court indicated that the question of legal aid should depend on the outcome of his application for permission to appeal.

[54] As the court has already made clear, counsel who appeared for him before the Divisional Court has prepared a skeleton argument. It is of considerable benefit to this court and we thank counsel for preparing it. It was submitted to the Divisional Court that the 33 claims were not generally vexatious and/or instituted without reasonable grounds. It was pointed out that three of the claims had been successful, and not all the remaining 30 unsuccessful claims had been struck out for not disclosing a cause of action. Most of the others had failed for other reasons relating to the defendant's failure adequately to plead or present his various claims. According to the skeleton argument, Dr Matthews accepts that he could not challenge the Divisional Court's decision that the proceedings were vexatious and initiated without reasonable grounds for doing so. However, the skeleton points out that there is a second requirement of s.42: that the proceedings should be habitual and persistent. It is contended that there needs to be an element of repetition in the proceedings against a particular defendant if they are to fall within the section. There is reference made to a statement of Lord Bingham in Attorney General v Barker [2000] 1 FLR 759, p 764:

“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 . . .

[Counsel for the Attorney General] acknowledges that the words 'habitually and persistently' connote an element of repetition, but says that that repetition need not be over a long period. I would accept that qualification, but there must nevertheless be that element of repetition and in my judgment it is not shown here. I would accordingly hold that the conditions for making an order under section 42(1) are not satisfied . . .”

[55] The reference by Lord Bingham in that passage from his judgment to what is the usual position does not avoid, in my judgment, an order being made in circumstances such as exist here.

[56] In the skeleton argument to which I have made reference, there is also a citation from a passage in the judgment of Rose LJ in the Divisional Court which is relevant. Rose LJ said:

“53. Mr Pickering concedes that there is, in the defendant's litigation, what he calls 'minimal repetition', but there is not, he submits, that characteristic of repeated litigation against the same defendant, or repeated litigation in relation to the same subject matter, which has, in the authorities to which he invited our attention, led to the making of an order of this kind: that is plainly so. 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. 68 54. 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.”

[57] The Divisional Court then went on to hold that the requirement of repetition was satisfied in that, although the defendant had not repeatedly sued the same party or relied on the same subject matter, he had repeatedly brought proceedings which were vexatious in nature. If I may respectfully say so, Rose LJ has set out, in a way on which I could not improve, the position in para 54.

[58] In support of his argument that the Divisional Court's approach was wrong, the following points were made by counsel:

1. The approach to the Divisional Court amounts to an unjustified and unprecedented widening of the principles set out by Lord Bingham in Barker, which were recently approved and followed in Attorney General v Flack (CO/3416/1999, unreported, 29.11.2000, at para 25).

2. The mischief that s.42 is designed to prevent is repeated litigation against the same person on the same issue. If the Divisional Court's approach were to be correct, it is said that this would constitute a significant widening of the mischief to which the section is aimed.

3. If the Divisional Court were to be correct in its extension, 'the whole concept of repetition is rendered meaningless, since almost by definition the cases in question would have to have had no reasonable cause of action if they are to satisfy the first requirement of being vexatious.'

4. It is said that the second requirement of s.42, namely that the vexation litigation has to be instituted 'habitually and persistently' has not been satisfied in respect of the defendant.”

[59] These submissions were made by counsel in the context of art 6 and it is submitted that to widen the application of s.42, as was done by the Divisional Court, would result in a contravention of art 6. It is said that, while Dr Matthews may be quick to sue, he was not someone who fell within s.42.

[60] In considering the validity of these submissions, it is useful to refer to the decision of the European Court of Human Rights in Tolstoy Miloslavsky v United Kingdom (1999) 20 EHRR 442. In that case the court said:

“59. The Court reiterates that the right of access secured by Article 6(1) may be subject to limitations in the form of regulation by the State. In this respect the State enjoys a certain margin of appreciation. However, the Court must be satisfied, firstly, that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aims sought to be achieved.” 69 [61] Guided by what was said by the European Court in that case, I have no doubt that the Divisional Court was right to come to the decision which it did. By choosing different targets for his litigation, Dr Matthews caused a variety of different defendants to suffer some disadvantage by litigation. But in deciding whether the conditions set out in s.42 are met, it is necessary to look at the whole picture. It is the cumulative effect of Dr Matthews' activities, both against the individuals who are drawn into the proceedings and on the administration of justice generally that has to be taken into account. When this is done, I have no doubt that to make an order against Dr Matthews does pursue a legitimate aim and that there is a reasonable relationship and proportionality between the means employed and the aims sought to be achieved. Furthermore, because of the ability of the court to give permission for the bringing of any proceedings which are justified, the limitation which is imposed does not restrict or reduce the access left to the individual to an extent that the very essence of the right of access to justice is removed.

[62] It is suggested that the Divisional Court's reasoning was inadequate. I do not accept this is so. A court does not have to answer every argument that is advanced. It is sufficient if it deals with the principal arguments and makes it clear the basis of the decision. In my view, the judgment of the Divisional Court achieves this.

[63] The position can be summarised by pointing out that 25 of the 33 actions brought by Dr Matthews have been struck out or summarily dismissed and four failed on their merits. There were numerous applications and appeals made in the actions. The actions had stretched over a period of about seven years. Many of the actions were issued at the same time. There were also many instances of the same point being re-litigated after a final decision has been made. Dr Matthews' appeal also lacks any merit.

[64] Before leaving the present applications, I should add a comment about the fact that the orders which are made are orders unlimited in time in the case of both applicants. This a matter of which Mr Covey in particular complained, both in his written and oral submissions. In my judgment, the position is that the court always has a jurisdiction to vary orders which have been made in the light of entirely new circumstances. However, that the orders should be made in the first instance in cases of this sort, unlimited in period of time, is, in my judgment, fully justified. The fact that there are the orders prevents an applicant conducting litigation which is vexatious. If the order achieves that purpose, then it is a safeguard against which those who would be subject to the inconvenience of the litigation which would otherwise occur are entitled to be protected. They should not be put in a position where, because of the expiry of a limited period of time, they should be again exposed to unjustified litigation. I would therefore dismiss both these applications for permission to appeal.

[65] As Dr Matthews was not, in my judgment, in a position to put forward anything like an arguable case, there can be no criticism of the legal aid authorities for not extending him legal aid for the purposes of making the application for permission.

MAY LJ

[66] I agree that each of these applications for permission should be dismissed for the reasons which Lord Woolf CJ has just given, with which I entirely agree.

[67] I mention one matter only in relation in particular to the application of Dr Matthews. Relevant ingredients which s.42(1) of the Supreme Court Act 1981 requires for the court to have power to make a Civil Proceedings Order include that the High Court has to be satisfied that the person in question has habitually and persistently, and without any reasonable cause, instituted vexatious civil proceedings, whether against the same person or against different persons or has made vexatious applications in any civil proceedings. Lord Bingham, in his judgment in Barker, considered the application of this section. The submission on behalf of Dr Matthews is that the section does not apply to the facts of his case because, in the main, the 33 actions relied on in support of the application were against different defendants. Counsel's skeleton submission does not seek to challenge the finding of the Divisional Court that Dr Matthews' litigation was generally vexatious and unreasonable, but it is submitted that it is not sufficient to show that a defendant has instituted a large number of proceedings. There has to be an element of repetition such as Lord Bingham referred to in Barker. Since Dr Matthews 33 actions were not in the main against the same person, nor did they arise out of the same subject matter, a necessary element of repetition was absent and the submission is that the Divisional Court's decision to the contrary was an unjustified and unprecedented widening of the principles which Lord Bingham set out in Barker. 70 [68] Section 42, it is submitted, is designed to prevent abuse by a litigant keen to litigate repeatedly against the same person on the same issue. People should not be inhibited from instituting unrelated claims against different people, even if each of them is unreasonable and vexatious.

[69] I do not accept this submission. I agree with paras 53 and 54 of the judgment of Rose LJ in the Divisional Court in Dr Matthews' case which Lord Woolf has cited in full. It is also I think pertinent to observe that s.42(1)(a) itself expressly includes the institution of vexatious civil proceedings “against different persons”. It seems to me in those circumstances verging on the absurd on the one hand to accept that instituting 33 vexatious actions without reasonable grounds against the same person or a small group of persons falls within the section, but to contend that instituting 33 vexatious actions without reasonable grounds against 33 different people does not.

[70] The truth is that Dr Matthews' institution of vexatious proceedings without reasonable grounds was habitual and persistent and against different persons. Those are all the ingredients, and sufficient ingredients in his case, which s.42(1) requires.

JONATHAN PARKER LJ

[71] I also agree that these applications should be dismissed for the reasons which my Lords have given.

Applications dismissed. 71

Attorney-General v Collier

CaseBase | Linxplus | [2001] NZAR 137

Attorney-General v Collier — [2001] NZAR 137 New Zealand Administrative Reports · 21 Pages

High Court Christchurch CP 57/98 18, 19 October 1999, 31 March 2000 Elias CJ and Heron J Headnotes

Courts and administration — Vexatious litigant — Application to declare respondent vexatious litigant — Interlocutory applications not to be considered as "institution of proceedings” — Nature and substance of proceedings themselves to be considered, not manner in which they were conducted — Correct approach to deciding application — When considering exercise of discretion to grant relief sought, overall conduct of the vexatious proceedings to be considered — Judicature Act 1908, s 88A — New Zealand Bill of Rights Act 1990, s 27 — Supreme Court Act 1981 (UK), s 42

The applicant sought to have the respondent declared a vexatious litigant based on 20 proceedings filed in the Christchurch registry of the High Court in which the respondent was a party. Counsel also relied on numerous appeals and applications made by the respondent during the course of these proceedings. It was alleged that the proceedings were characterised by prolix pleadings and affidavits, extravagant claims, numerous unsuccessful interlocutory applications and a refusal to accept adverse decisions evidenced by numerous unsuccessful appeals. It was further submitted that the respondent had made serious and unfounded allegations about people not before the Court, including members of the judiciary. The 16 proceedings instituted by the respondent fell into two time slots, from 1987 to 1989 and 1995 to 1998. The gap was in part accounted for by his bankruptcy. The Court was taken through the actions commenced by the respondent, and the numerous interlocutory applications, reviews and appeals.

Held (allowing the application)

(1) Interlocutory applications were not the "institution of proceedings” for the purposes of s 88A of the Judicature Act 1908.

Attorney-General v C F Vernazza [1960] AC 965 ; [1960] 3 All ER 97 (HL), Attorney-General v Wentworth (1988) 14 NSWLR 481 and Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 applied.

(2) It was therefore not the manner in which proceedings were conducted to be considered in this application but whether the nature and substance of the proceedings themselves could be characterised as vexatious.

Re Langton [1966] 3 All ER 576; [1966] 1 WLR 1575 , Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 and Attorney-General v Hill (1993) 7 PRNZ 20 applied.

[2001] NZAR 137 at 138

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(3) The power under s 88A was exercised only where the applicant satisfied the Court that the defendant had "persistently and without any reasonable ground" instituted vexatious legal proceedings. It was appropriate to look first to the individual proceedings instituted by the respondent, but the Court also had to look at the totality of the proceedings. The subjective intention of the respondent was not determinative of vexatiousness, which was a matter to be objectively assessed. Only proceedings actually instituted by the respondent and counterclaims filed by him were relevant.

Attorney-General v Hill (1993) 7 PRNZ 20 applied.

(4) The fact that a plaintiff failed in litigation did not demonstrate that the proceedings were vexatious. It was necessary to examine the reasons given in the judgment to determine whether the proceedings were properly to be characterised in that way. A successful strike-out, when not based on technical points, might be reliable evidence of vexatiousness. The fact that a proceeding was not pursued was not of itself indicative that it was without substance but the filing of a number of proceedings which were not pursued might be evidence of vexatiousness. Finally it was necessary to consider from all the circumstances whether there was such pattern of persistence in instituting vexatious proceedings as to justify an order.

(5) The grounds of the application had been amply made out. The proceedings on which the Court relied in concluding that the respondent had persistently and without any reasonable ground instituted vexatious legal proceedings included litigation instituted by the respondent which had been struck out (four proceedings), litigation found to be wholly without merit after hearing (two proceedings) and litigation instituted but not pursued (six proceedings).

(6) In considering whether grounds for relief had been made out, the proceedings overall had to be considered. The fact that so much of the more recent litigation was derived from the earlier litigation indicated the respondent's persistence and loss of proportion. Overall, the number of proceedings demonstrated that the respondent had persistently and without reasonable care instituted vexatious legal proceedings.

(7) When considering whether to exercise the discretion to grant the relief sought, it was proper to take into account the overall conduct of the vexatious proceedings. The continuation of interlocutory applications and appeals after the institution of the present proceedings demonstrated the real likelihood that the respondent would continue to pursue improper ends through litigation. The widening circle of those to whom the respondent's sense of grievance extended and the escalating seriousness of the allegations made against them in the counter-claim to the present application demonstrated the risk. The history of the proceedings relied on by the applicant demonstrated that the consideration extended to the respondent by successive Courts had not encouraged him to exercise restraint. There were serious doubts that the respondent was capable of modifying his behaviour himself. While the respondent might have acted out of a genuinely held sense of grievance that did not detract from the unacceptability of his actions and the strain he was imposing both on the legal system and those litigants unfortunate enough to be the subject of his sense of grievance.

[2001] NZAR 137 at 139

(8) Proper grounds had been made out and this was a proper case to grant the order sought.

Observation

Whether appeals were to be characterised as "proceedings" for the purposes of s 88A of the Judicature Act 1908 had not been determined in New Zealand. It was not necessary in this case to rely on the respondent's persistent filing of appeals which had proved to have no merit. But appeals and applications in litigation not instituted by the respondent might create the mischief the section was designed to prevent. English legislation had been amended to encompass such steps. The present New Zealand legislation might be inadequate in this respect.

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Cases referred to in judgment

Attorney-General v C F Vernazza [1960] AC 965 ; [1960] 3 All ER 97(HL)

Attorney-General v Hill (1993) 7 PRNZ 20

Attorney-General v Jones [1990] 2 All ER 636; [1990] 1 WLR 859

Attorney-General v Wentworth (1988) 14 NSWLR 481

Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478

Langton, Re [1966] 3 All ER 576; [1966] 1 WLR 1575

Vernazza, Re [1960] 1 QB 197 ; [1960] 1 All ER 183

Application

This was an application by the Solicitor-General to have the respondent declared a vexatious litigant pursuant to s 88A of the Judicature Act 1908.

Pamela Andrews and C C Inglis for the applicant.

Respondent in person for part.

JUDGMENT OF THE COURT.

[1] This is an application by the Solicitor-General to have Mr Collier declared a vexatious litigant pursuant to s 88A of the Judicature Act 1908. That section provides:

(1) If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any Court and that any civil proceeding instituted by him in any Court before the making of the order shall not be continued by him without such leave. (2) Leave may be granted subject to such conditions (if any) as the Court or Judge thinks fit and shall not be granted unless the Court or Judge is satisfied that the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding. (3) No appeal shall lie from an order granting or refusing such leave.

[2] The Attorney-General’s statement of claim refers to 20 proceedings filed in the Christchurch Registry of the High Court in which Mr Collier has been a party. The statements of claim in each set of

[2001] NZAR 137 at 140 proceedings and the judgments disposing of such of them as have proceeded to judgment are scheduled to the statement of claim and are relied upon as substantiation of the grounds of the application. Counsel for the Attorney- General also relied upon numerous appeals and applications made by Mr Collier in the course of the proceedings.

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[3] The statement of claim refers to the fact that six of the proceedings have been the subject of successful strike- out applications (two partial), seven have been finally determined against Mr Collier, one was discontinued by the Official Assignee for Mr Collier and eight remain extant. In respect of five of the extant proceedings, no steps have been taken in the proceedings for three years or more.

[4] It is alleged that the 20 proceedings listed were characterised by complex and prolix pleadings and affidavits, extravagant claims, numerous unsuccessful interlocutory applications, and a refusal to accept adverse decisions, evidenced by numerous unsuccessful appeals on both interlocutory and substantive matters. Reference is made in the statement of claim to serious and unfounded allegations about persons not before the Court, including members of the judiciary. It is alleged they were repetitive and overlapping. The proceedings were said to be characterised by failure by Mr Collier to prosecute them to conclusion. It is said there has been an extension of proceedings to encompass an increasing circle of potential defendants. It is claimed that Mr Collier has persistently and without reasonable grounds instituted vexatious legal proceedings and is likely to continue to do so unless restrained. Orders are accordingly sought under s 88A.

History of the application

[5] Because of the unusual course taken by the respondent at the hearing, we set out the history of the application in some detail. The proceedings were served on 23 April 1998 on Mr Collier personally. A conference in accordance with case management procedure on 29 July 1998 noted that the case should be heard before a full Court of two Judges. In a memorandum by the respondent at the initial conference, he made reference to his requirement for extensive particulars and wide-ranging discovery.

[6] On 23 July a counterclaim was filed. The allegations made in it form part of the claim of persistent institution of vexatious proceedings and are set out below.

[7] On 4 August the Crown filed applications for orders striking out or alternatively staying the counter-claim, striking out part of the statement of defence and for directions relating to discovery. The applicant filed a notice of opposition to the various orders sought by the Crown.

[8] In a minute of 28 August 1998, Hansen J referred to the fact that Mr Collier had made application that the striking out matter be heard by Judges not resident in Christchurch. That was declined and the matter set down before the Master on Thursday 10 September 1998. Hansen J noted that if Mr Collier was unsuccessful and sought review of the Master’s decision, then the matter would be referred to the Chief Justice for consideration of convening a full bench of other than Christchurch-based Judges.

[2001] NZAR 137 at 141

[9] A long affidavit was filed by Mr Collier in the Crown’s strike-out application which was then set down for hearing before the Master on 10 September 1998. The Crown objected to its being read on the grounds that the affidavit contained highly prejudicial material and allegations of an unsubstantiated nature about a number of persons including senior members of the legal profession who were not party to the proceedings. According to the Crown the allegations were scandalous and in any event, irrelevant to the proceeding currently before the Court.

[10] On 10 and 11 September 1998, the strike-out application was heard. On 20 October 1998 judgment was given by Master Faire in which part of the statement of defence was struck out on the ground that it disclosed no reasonable defence. At the same time the Master struck out the first, second, third and fifth causes of action contained in the counter claim, the fourth cause of action being withdrawn by leave.

[11] On 27 October 1998 Mr Collier commenced an application for review of the Master’s judgment. On 1 December 1998 Hansen J directed that the review should not be heard by a Christchurch Judge. To facilitate matters, the Crown indicated it would pay Mr Collier’s travelling expenses to have the matter heard in Wellington.

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Mr Collier requested the matter to be heard by a Full Court and on 16 December the Executive Judge in Wellington so directed.

[12] On 7 March 1999 Mr Collier wrote to the Registrar of the High Court at Christchurch indicating that he now considered it was impossible for him to have a fair hearing of his review application in Wellington. He noted that the hearing had been set down for Tuesday 16 March. In that letter he enclosed letters of 4, 5 and 6 March addressed to the Crown Law Office. As far as this Court can determine it, the gravamen of Mr Collier’s complaint was that one of the Crown Law solicitors handling these proceedings was the daughter of a High Court Judge based in Wellington.

[13] In a minute on 9 March 1999 Hansen J recorded:

Included in Mr Collier’s counter claim are serious allegations against Panckhurst J a Judge of the Christchurch High Court. Despite Mr Collier’s protestations, in his appearances before me, and in telephone conferences, he has stated it would be inappropriate for Young J to hear this review. He now states contrary to what was said earlier, that he has no objection to it being heard by myself and Chisholm J. Despite that I have concluded the matter should properly be heard by Judges outside the region because of the allegations made.

At the last conference, to facilitate the matter, the Crown offered to pay Mr Collier’s travel and accommodation expenses to allow the matter to be heard in Wellington. A fixture has been obtained in Wellington. Mr Collier makes claims he cannot obtain a fair hearing in Wellington. In his lengthy correspondence placed before me a major reason appears to be the refusal of the Crown to pay travel, accommodation and incidental expenses for two friends he wishes to be in Court with him. He feels it is necessary for this because of the experiences he claims to have suffered at the hands of a barrister representing the Crown in the past.

Today he added a further claim, and that is Ms Ellis, who represents the Solicitor-General in this proceeding, is the daughter of one of the Wellington Judges. He claims on that basis it would be impossible to obtain a fair hearing in Wellington because all Judges in Wellington would be aware of that. It is not uncommon in New Zealand for Judges’ children to pursue a

[2001] NZAR 137 at 142 career in the law. They would not appear before their parent in any opposed matter, but I have never heard it suggested previously that that, in some way, disqualifies Judges in the same Registry. Indeed, it is common place for Judges in the same Registry to hear such cases.

For the sake of completeness, I add that Mr Collier is also concerned that by the physical presence of the Solicitor- General’s chambers in Wellington, and their perhaps not infrequent appearance in the Wellington High Court, there is again some possibility that he will not receive a fair hearing. The Wellington Judges are as distant from the Solicitor-General’s office as all High Court Judges in this country.

The fixture is confirmed.

[14] On 15 March Mr Collier swore an affidavit in which he recorded that on 22 June 1998 he had written to the Prime Minister concerning the conduct of the Attorney-General and the Minister of Justice, and had followed that the next day with a letter seeking a public enquiry as to whether there was misfeasance in public office and a conspiracy to defeat the course of justice. The review proceedings went ahead before Gendall and Wild JJ on 16 March, and on 24 March in the Wellington High Court, Mr Collier’s application for review of the Master’s decision, striking out his counterclaim was declined.

[15] The Court recorded that Mr Collier’s defence denying the Attorney-General’s allegations was unobjectionable and had Mr Collier left it at that the substantive issue could have moved to trial and been tested. The judgment then recorded that he had not left it at that and had filed a counterclaim against the Attorney-General. The judgment then reviewed the counterclaim. It was noted that, as a matter of principle, counterclaims to s 88A applications should not be allowed. To permit them, the Court held, was to allow further potentially vexatious proceedings coming

AYCEID ServicetoService Page 6 of 17 76 Attorney-General v Collier through “the back door”. At the same time the Court noted Mr Collier’s freedom, subject to the s 88A application outcome, to commence claims independently of any counterclaim. The Court then reviewed the five causes of action in the counterclaim, declined to review the Master’s decision and concluded by saying that the Court urged Mr Collier to concentrate on the substantive issue which needed to be determined and the sooner for better for all concerned including Mr Collier. The question was, “is Mr Collier a vexatious litigant?”.

[16] On 21 April 1999, Mr Collier sought application for leave to appeal against the High Court decision just referred to, and gave detailed grounds. It is perhaps of some interest to include some of those grounds, it being noted that they refer in some cases to misfeasance, cover-ups and conspiracies: 2. The decision is against natural justice and aimed to protect members of the legal profession (and apparently from the Statement of Claim) members of the judiciary from actions by the respondent by having the judiciary control the respondent with no right of appeal. 3. The Attorney-General is acting in misfeasance of his powers under s 88A if he brings such an action for an ulterior motive. The decision of Gendall and Wild JJ ignores and does not address the

[2001] NZAR 137 at 143 facts alleged in the counterclaim that the Attorney-General is acting ultra vires. 4. It is not the actions of the Official Assignee which is claimed as the cause of action in the counterclaim but the fact that in breach of his obligations the Attorney-General failed to investigate the office of the Official Assignee and conspired with the Official Assignee to cover up the complaints against the Official Assignee and is now using s 88A proceedings to protect himself for his actions and omissions and conspiring with members of the legal profession to protect from prosecution members of that profession and to assist the Attorney-General to unlawfully bring s 88A proceedings. 5-9. … 10. (a) The conspiracy alleged is that the Attorney-General conspired to bring these proceedings with other parties for an unlawful purpose.

[17] On 21 April 1999 Mr Collier filed an amended counterclaim and his application for leave to appeal came before Hansen J on 13 May 1999. The Judge described the amended counterclaim as reducing the causes of action to two, namely misfeasance in public office and conspiracy. He said the conspiracy had been significantly circumscribed from the initial pleadings. Hansen J then went on to say:

I am quite satisfied that Mr Collier today, despite the circumscribed and amended counterclaim, has failed to come within the applicable principles for the granting of leave. There has been a full hearing in front of two Judges, and I would just repeat in this regard comments made in the course of that judgment relating to s 88A proceedings. There their Honours stated:

As the purpose of the application is transparent and is expressly permitted by law it simply cannot be categorised as an unlawful purpose. Every s 88 application is intended by the Attorney-General to provide a benefit to those being, or about to be sued, so as to spare them the vexation of litigation unless this Court grants leave. That does not make it a conspiracy.

Further, there is force in the submission on behalf of the Attorney-General that whether or not he has an ulterior purpose, the matter will not be decided on that basis. The cases involving Mr Collier will be considered by the Court, and the Court will determine, objectively, whether or not he is a vexatious litigant. It may well be that a number of the matters advanced by Mr Collier, as part of his counter claim, will be relevant to his defence. If, for example, he can establish to the satisfaction of the Court that the only purpose of this application in these proceedings is to protect public officials then I would imagine it highly unlikely that he would be declared a vexatious litigant. But they are matters, in my view, for defence. Furthermore, the claims he makes are not prevented from being brought because of this application. They seem to me quite

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interdependent of these proceedings, and do not easily fall into the category of a counter claim. If Mr Collier wishes to issue those proceedings that is a matter for him.

In all of the circumstances I would decline leave.

[18] Following some difficulty in the filing of an amended statement of claim, which the Crown attempted to do without payment of the appropriate fee and without a copy of the document being tendered for

[2001] NZAR 137 at 144 filing as well, Crown counsel filed a memorandum setting out the reasons for filing the amended statement of claim and indicating that the amended statement of claim was done with a view to meeting Mr Collier’s requests for discovery and for further particulars. As the memorandum recorded:

Nevertheless, in an endeavour to assist Mr Collier to appreciate more fully the nature of the Attorney-General’s application and to anticipate the kinds of argument that would be made at the substantive hearing, a decision was made to file an amended statement of claim setting out the claim in as much detail as possible and referring specifically to the documents upon which the Attorney-General would rely at the hearing.

[19] The memorandum also noted that all of those documents would have been in Mr Collier’s possession as they largely comprised judgments or pleadings in the variety of litigation referred to in the statement of claim.

[20] Mr Collier then filed an application to dismiss the proceedings on the grounds that the amended statement of claim was filed and served after the proceedings had been set down, and that leave had not been sought. He also referred to the amended claim disclosing no reasonable cause of action and that it failed to comply with the High Court Rules and that it pleaded purely evidentiary material.

[21] Master Venning refused the application to dismiss on 18 August 1999. He allowed 14 days for Mr Collier to file a defence to the amended statement of claim and extended that time to 3 September 1999. Master Venning referred to arguments as to the format of the statement of claim and said: [27] Whilst accepting the form of the statement of claim is perhaps unorthodox or unusual, that is not in itself sufficient to justify summary dismissal of the proceeding. The structure of the claim is as follows. It identifies the 18 sets of proceedings which the Attorney-General proposes to refer to in support of his case. The background to each of the proceedings is summarised as are the steps or features of the proceedings which the Attorney-General proposes to rely upon. Specific passages of judgments are quoted. [28] The amended claim also addresses two matters raised in Mr Collier’s notice for particulars. It identifies persons not before the Court that it is alleged were the subject of serious unfounded allegations, and also identifies members of the judiciary in the same category. [29] Thus, while unusual, the pleading is not prolix or difficult to follow so that it could be said it is likely to cause prejudice, embarrassment or delay in the proceeding or is otherwise an abuse. [30] Mr Collier next referred to the provisions of s 88A Judicature Act 1908. He submitted the amended statement of claim did not give any particulars as to which proceedings were vexatious nor why they were vexatious, and further the amended statement of claim gave no grounds to show that the proceedings were persistently brought without reasonable grounds.

[2001] NZAR 137 at 145 [31] Mr Collier referred to the well known principle of natural justice that a person must be given a fair opportunity to state his case and to know and answer the other’s case. [32] With respect to that last point, it is in my view misconceived. Mr Collier knows the basis of the Attorney- General’s case. He can hardly be said to have been caught by surprise. Ms Inglis confirmed that the

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Attorney-General proposed to rely upon the 18 sets of proceedings identified in the statement of claim as establishing the grounds relied upon by the Attorney-General. That is what the pleading says. Mr Collier knows the case he has to answer.

[22] On 25 August 1999 Mr Collier filed an application for review of Master Venning’s decision and his application to have the matter heard before a Full Court was declined. It was directed to be heard before Chisholm J on 15 September. In his application Mr Collier focused on the statement of claim claiming it was required to identify which proceedings are vexatious and to inform the respondent in what respect each of those proceedings is vexatious. He claimed that he did not know the basis of the Attorney-General’s claim.

[23] On 17 September Chisholm J heard the application for leave to appeal against the refusal of the Master to strike out on the grounds of defects in the statement of claim. He recorded that at the beginning of the hearing Mr Collier took exception to Chisholm J hearing the case and asked for the matter to be removed into the Court of Appeal. The Judge noted that the amended statement of claim traversed 18 different proceedings and that the statement of claim concluded with an allegation that by commencing those proceedings Mr Collier has persistently and without reasonable grounds instituted vexatious legal proceedings and was likely to continue to do so. The Judge recorded that the amended statement of claim, by attaching the judgments, removed any doubt as to just what the Attorney-General was alleging and conveniently assembled the various documents on which the application was based.

[24] Following delivery of Chisholm J’s judgment on the pleadings matter, Mr Collier applied for leave to remove the matter into the Privy Council. On 8 October Chisholm J pointed out that, in terms of R 2C of the Privy Council Rules, only a final judgment could be removed by the High Court into the Privy Council. He noted that the proceeding was to be heard within the next week by this Court.

[25] When the case commenced before us on Monday 18 October 1999, we did not have before us at the commencement of proceedings an application by the respondent for leave to appeal Chisholm J’s judgment on the pleadings matters (not the Privy Council matter), which had appropriately been set down on 18 October at the same time as the hearing of the substantive application. We should have had that document before us so we could then have first considered it and dealt with the accompanying adjournment application.

[26] At the commencement of the hearing and in the course of argument Mr Collier raised again the question of particulars and repeated that the respondent was entitled to know under R 108 the particulars and facts which the Attorney-General alleges and relies on in claiming that

[2001] NZAR 137 at 146 each and every proceeding detailed in the statement of claim was vexatious. These were the very matters that were before the Master and on review, before Chisholm J. Nonetheless, there was before us an application properly brought by Mr Collier for leave to appeal. However, his requests that the application for leave to appeal be argued and that the substantive application declaring him a vexatious litigant be adjourned, was based on his overall submission that there were insufficient or inadequate particulars. In discussion with him, the Court made it clear that plainly some of the proceedings which were attached to the statement of claim, would not, on the face of it, pass the test of being vexatious or an abuse of process on his part. In a frank discussion with Mr Collier, we made that point clear but expressed the view that Mr Collier had sufficient particulars. We saw it exactly as the Master and Chisholm J had seen it.

[27] Mr Collier, hearing that the Court saw nothing in the point as to inadequacy of particulars and considered that the substantive application should proceed to consider all the material in the statement of claim (acknowledging that some might not be regarded as vexatious) declared he would not get justice before us and left the Courtroom. Mr Collier’s decision to leave came despite our pointing out to him that he would have the opportunity of speaking about each case, justifying its initiation or otherwise dealing with it as he saw fit. With his undoubted familiarity of the detail of each piece of litigation, final and interlocutory, this was well within his capabilities and could not have

AYCEID ServicetoService Page 9 of 17 79 Attorney-General v Collier embarrassed him or compromised his defence to the proceedings. Such an approach could not possibly have rendered any injustice to Mr Collier. Nonetheless he departed. We proceeded with hearing the Crown’s application in Mr Collier’s absence.

[28] The next morning it was drawn to our attention that Mr Collier wished to speak to the application for leave to appeal concerning particulars. Mr Collier had not drawn his application to our attention. It was not among the papers before us, having been filed only on 14 October, some two working days before the hearing. Mr Collier no doubt on further reflection, now wanted to draw our attention to the outstanding application. Mr Collier returned during the morning of Tuesday 19 October, and we heard him again about the application for leave to appeal and the consequential application for adjournment. He complained that the matter should have been before us and we noted his complaint. This however could not have made the slightest difference to our decision to proceed. He made his point about requiring further particulars and in the discussion we had with him, we made it clear that we were not ordering further particulars. The case was in our view amply particularised. That being so, it must have been plain to Mr Collier that he would not have obtained leave to appeal and consequently would not have received an adjournment. He had made the decision to unilaterally leave the proceedings. That was his choice. On making formal application for leave to appeal when that matter was before us on the second day, we declined such leave on the basis that the claim was fully particularised. His application for adjournment was likewise declined. Mr Collier then again left the Court, and we continued with the substantive application.

[2001] NZAR 137 at 147

[29] We note that Mr Collier is familiar enough with Court proceedings to have initiated a mention of the application for leave to appeal, but rather he entered the debate about particulars which was the subject of the application for leave to appeal. He could see that he was unlikely to be successful on that and no doubt that caused his decision to leave. We should note also that Mr Collier had a further opportunity of participating in the hearing when he returned to argue the application for leave to appeal. We indicated we would have given him time to read the Crown’s submissions. This opportunity he also declined.

[30] The course taken in the present proceedings by Mr Collier is similar to his conduct of the proceedings which are relied upon by the applicant as justifying the order. In the review undertaken below, we do not seek to describe in any detail how the proceedings were conducted, because such conduct is not determinative of whether the proceedings themselves may properly be characterised as vexatious. The review undertaken of the history of the present litigation does, however, convey the flavour of a number of the proceedings conducted by Mr Collier. They are characterised by large numbers of interlocutory applications and intemperate conduct.

Section 88A and the applicable legal principles

[31] Interlocutory applications are not the “institution of proceedings” for the purposes of s 88A: Attorney-General v CF Vernazza [1960] AC 965 ; [1960] 3 All ER 97 (HL); Attorney-General v Wentworth (1988) 14 NSWLR 481, 492; Hunters Hill Municipal Council v Pedlar [1976] 1 NSWLR 478, 488 per Yeldham J. Again, the New Zealand legislation is more limited in this respect than s 42 of the 1981 English Act, which explicitly extends to vexatious applications made in the course of civil proceedings. It is therefore not the manner in which proceedings are conducted which is in issue in considering the Crown’s application, but whether the nature and substance of the proceedings themselves can be characterised as vexatious: Re Langton [1966] 1 WLR 1575 , 1578 per Lord Parker; Hunters Hill Municipal Council v Pedler at p 485; Attorney-General v Hill (1993) 7 PRNZ 20, 22.

[32] Whether appeals are properly to be characterised as “proceedings” for the purposes of s 88A has not yet been determined in New Zealand. In other jurisdictions, opinions have been expressed that the “institution of proceedings” includes appeals from final determinations: Hunters Hill Municipal Council v Pedler at p 488 per Yeldham J; Re Vernazza [1960] 1 All ER 183 per Ormerod and Wilmer LJJ at pp 187–188 (a decision under the former legislation, before the 1981 Act put the matter beyond doubt in the United Kingdom). In Attorney-General v Hill (1993) 7 PRNZ 20, the Full Court, comprising Henry and Doogue JJ, thought it arguable that appeals were included, but expressed no concluded view on the matter. In the present case, too, we have not thought it

AYCEID ServicetoService Page 10 of 17 80 Attorney-General v Collier necessary to rely upon Mr Collier’s persistent filing of appeals which have been proved to have no merit. While they are part of the overall background against which the proceedings instituted and conducted by Mr Collier fall to be considered, some caution is necessary in an expansive approach to the language of a section which impacts upon rights of access to the Courts as recognised by s 27 of the New Zealand

[2001] NZAR 137 at 148 Bill of Rights Act 1990. In deciding whether the grounds in s 88A have been made out by the applicant, we have not treated appeals as the institution of proceedings.

[33] Because of the impact upon rights of access, it is proper for the Court to be reluctant to make an order unless the grounds are clearly made out: see Attorney-General v Jones [1990] 1 WLR 859 , 863 per Lord Donaldson MR. But as Staughton LJ at p 865 pointed out in the same case:

There must come a time when it is right to exercise that power, for at least two reasons. First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection: secondly, the resources of a judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances and should not be squandered on those who do not.

[34] It is unnecessary to repeat here the review of the law undertaken by the Full Court in Attorney-General v Hill. We adopt the statement of principles there expressed.

[35] The power under s 88A is exercised only where the applicant satisfies the Court that the defendant has “persistently and without any reasonable ground” instituted vexatious legal proceedings. It is appropriate to look first to the individual proceedings instituted by the respondent but the Court must also look at the totality of the proceedings. Isolated or limited proceedings properly characterised as vexatious may not demonstrate the necessary persistence. A proceeding which discloses an arguable cause of action or is based upon an underlying legitimate grievance may nevertheless be vexatious set in context. The subjective intention of the respondent is not determinative of vexatiousness, which is a matter to be objectively assessed. Only proceedings actually instituted by the respondent are relevant.

[36] Vexatious litigation is frequently accompanied by complex pleadings, a widening circle of defendants as litigation proceeds, frequency of striking out of part or all of the statements of claim, inability to accept unfavourable decisions, escalating extravagant or scandalous claims (frequently invoking allegations of conspiracy or fraud) and failure to pursue proceedings once instituted. The authorities cited to us from other jurisdictions demonstrate the consistency with which characteristics such as these are present in vexatious litigation.

[37] It is necessary in the present case to analyse the litigation relied upon by the applicant in order to make the assessment whether the applicant has discharged the burden of demonstrating that the respondent has persistently instituted vexatious proceedings. Applying the principles discussed in Hill, we have disregarded litigation relied upon by the applicant which was not instituted by Mr Collier. Nor have we thought it necessary to treat the pursuing of appeals as the institution of proceedings.

[38] Unlike the comparable provision to be found in s 42 of the United Kingdom Supreme Court Act 1981, the New Zealand legislation does not extend to “vexatious applications in any civil proceedings … whether instituted by him or another …”. In its terms, s 88A is confined to proceedings instituted by the person against whom the order is sought. The terms of the section extend to counterclaims filed by the person against

[2001] NZAR 137 at 149 whom the order is sought, but are not appropriate to cover litigation in which he or she is a defendant or third party.

[39] Appeals and applications in the course of litigation not instituted by the respondent may create the mischief the section was designed to prevent. That is no doubt why the English provision has been amended to encompass such steps. Mr Collier’s appeals and interlocutory applications in many of the proceedings referred to us by the

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Attorney-General suggest that the present legislation may be inadequate in this respect. It has not, however, been necessary to rely upon the appeals and applications because of the view we take of the proceedings instituted by Mr Collier.

[40] The fact that a plaintiff fails in litigation does not demonstrate that the proceedings are vexatious, it is necessary to examine the reasons given in the judgment to determine whether the proceedings are properly to be characterised in that way. Although in many cases it may not be possible to decide whether litigation is wholly without merit until it is determined, a successful strike-out application by the defendant, at least where not based upon technical points (such as Limitation Act defences or error in the form of proceedings not known to the plaintiff) may be reliable evidence in the circumstances of vexatiousness. Similarly, while the fact that a proceeding once filed is not pursued is not of itself indicative that it is without substance, the filing of a number of proceedings which are not pursued may be evidence of vexatiousness in all the circumstances.

[41] Finally it is necessary to consider from all the circumstances whether there is such pattern of persistence in instituting vexatious proceedings as to justify an order.

The proceedings instituted by Mr Collier

[42] Those proceedings instituted by Mr Collier fall into two general time slots: the period from 1987 to 1989; and the period 1995 to 1998. The gap seems to be accounted for in part by Mr Collier’s bankruptcy in 1991.

[43] The earlier proceedings contain the seeds of much subsequent litigation. Whether or not the proceedings can be characterised as vexatious, it is necessary to identify them in part to establish the background against which the subsequent litigation is properly to be viewed. A significant event in the sequence is the Court order adjudicating Mr Collier bankrupt which was made on 15 July 1991 on the application of Elders Pastoral as judgment creditor. The adjudication was challenged by Mr Collier by way of appeal to the Court of Appeal, in part upon the grounds that the Judge who made the order, Holland J, was biased. The Court of Appeal dismissed the appeal against the adjudication on 31 July 1991 and on 16 August 1991 Mr Collier’s application for leave to appeal further to the Privy Council was refused.

[44] The bankruptcy seems to have been a significant trigger for much of the subsequent litigation. At the time Mr Collier was adjudicated bankrupt he had a number of proceedings on foot. They included: (1) Collier v Boyle and Cavell Leitch Pringle and Boyle (CP 131/88), a claim in negligence against Mr Collier’s former solicitors for adopting the wrong procedure in a dispute which meant that the merits of Mr Collier’s earlier failed action against Andersons

[2001] NZAR 137 at 150 Engineering in Collier v Anderson’s Engineering (M 493/86) could not be determined.

This claim was taken over by the Official Assignee when Mr Collier was adjudicated bankrupt in July 1991. In an amended statement of claim, the claim for general damages brought by Mr Collier of $2.3m was dropped and the claim for exemplary damages was reduced from $500,000 to $25,000.

(2) Collier v Taylor Shaw and Anderson (CP 145/89), a claim in libel and negligence brought by Mr Collier against the solicitors of a creditor who had mistakenly entered judgment against him after the dispute about the debt had been settled by agreement. The defendant apologised for the mistake. Fraser J entered judgment for the defendant on the claim for general damages of $50,000, exemplary damages of $5000 (a claim withdrawn at the hearing), interest and costs. The Judge said that much of Mr Collier’s distress was “self-inflicted”. Mr Collier had appealed this decision but, with the intervention of the bankruptcy, the Official Assignee abandoned the appeal.

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(3) Collier v Creighton (CP 13/89), a claim by Mr Collier against his former solicitor and his firm arising out of that solicitor’s purchase of a property Mr Collier had sought to acquire. Judgment for the plaintiff against the first defendant in the sum of $10,000 had been entered by Roper J, but judgment for the other defendants had been entered against Mr Collier. At the time of the bankruptcy Mr Collier had appealed to the Court of Appeal and Mr Creighton had cross-appealed. The Official Assignee took over the appeal. At the hearing of the appeal the Court of Appeal held that Mr Collier’s action had been statute barred and allowed the cross-appeal. A further appeal to the Privy Council was dismissed on 8 May 1996. In December 1996 Mr Collier applied for a new trial on the grounds that the original judgment against Mr Collier had been obtained by perjured evidence.

In April 1997, the application for a new trial was dismissed by Robertson J. Mr Collier endeavoured to have an originating application seeking a new trial on the grounds of perjury heard in the Court of Appeal. On an application for directions by the defendants, Mr Collier’s application was dismissed in the Court of Appeal on 16 February 1998, Gault J noting that since Mr Collier’s application for new trial had been dismissed in the High Court, “he has been attempting to have this Court set aside the original judgment of the High Court and on what have been formulated as originating applications. Although the Registrar informed him the Court lacked jurisdiction he has persisted and in addition has sought leave to bring further evidence”. The Court of Appeal found that it had no residual jurisdiction to entertain such originating applications which, in effect, sought to set aside a judgment of the Privy Council. Gault J noted that the proper procedure where a litigant seeks to set aside a judgment entered into by fraud is by way of fresh proceedings.

(4) Collier v Ensor and Dawson (CP 160/87), a claim based on breach of contract for agistment to graze sheep made by way of

[2001] NZAR 137 at 151 application for summary judgment. Summary judgment was refused by Holland J on 14 July 1987. The Judge stayed the proceedings until an amended statement of claim was filed, on the basis that the claim as filed was “unnecessarily complicated and the relief which he is seeking is not appropriate”. No further action has been taken in the proceedings by Mr Collier. (5) Collier v Marshall Equities (CP 179/88), a claim in which no steps have been taken by Mr Collier since 10 April 1989. The claim alleged breach of contract and fiduciary duty and damages of $140,500 together with interest. (6) Collier v Hamilton Hindin Greene (CP 329/88), a claim against a firm of stockbrokers for breaches of fiduciary duty and confidentiality. These proceedings were issued after Hamilton Hindin Greene had issued proceedings against Mr and Mrs Collier claiming payment of $33,589.45 for shares purchased on their behalf. After some unsuccessful skirmishing and appeal of interlocutory orders, Mr Collier successfully resisted an application to dismiss his claim for want of prosecution in February 1995. The proceedings filed by Mr and Mrs Collier in CP 329/88 claimed damages of $4931.28 for actual losses and general and exemplary damages totalling $100,000. No steps have been taken since 1995. (7) Collier v New Zealand Stock Exchange (CP 374/88), a claim for breach of fiduciary duty and negligence. Damages totalling $220,000 were claimed including exemplary damages. An application for directions regarding the proceedings applied for by Mr Collier in February 1989, was adjourned sine die. No further action has been taken by Mr Collier since then. (8) J M and M A Collier v Action Finance Limited (CP 585/88), a claim for breach of fiduciary duty and confidence in which damages of $270,000 were claimed. After some interlocutory hearings an amended claim was filed in April 1989. No further steps have been taken by Mr Collier since then. (9) J M and M A Collier v Equitable Life and General Insurance Company Limited (CP 265/89), a claim that a mortgage transaction was “oppressive” under the Credit Contracts Act 1981 and in breach of the Fair Trading Act 1986. The plaintiffs’ application for summary judgment was dismissed in June 1989. The

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matter proceeded to a substantive hearing and on 15 March 1991, Roper J dismissed the Colliers’ claim. Mr Collier appealed but, following the bankruptcy, the appeal was maintained by Mrs Collier alone. The Court of Appeal dismissed the appeal as without merit, although noting there may have been non- disclosure due to an error of law on the part of the finance company. Most claims advanced by Mr and Mrs Collier were said to be clearly untenable and overall the claim was considered to be wholly unmeritorious:

The debtors have not been prejudiced at all by the non-disclosure. … There is no ground for any suggestion that the bargain was in any way unreasonable, or that the plaintiffs were exploited or had more favourable competitive finance available to them.

[2001] NZAR 137 at 152

… to refuse relief [to the lenders] would be to allow the Act to be exploited by borrowers to extricate themselves from a fair bargain.

[45] The litigation described above does not include the litigation to which Mr Collier was a party but which was not instituted by Mr Collier. Nor does it describe the interlocutory applications and review or appeals undertaken in proceedings to which Mr Collier was party, whether as plaintiff or defendant. These were numerous. They included applications to cross-examine counsel and solicitors who had acted for the Official Assignee in Collier v Creighton (CP 13/89) and counsel for the defendant. These counsel included Mr Jones, Mr Panckhurst and Mr Till whose conduct of the litigation was subsequently challenged by Mr Collier in fresh proceedings brought directly in some cases against those counsel and referred to below. The applications for review and appeals were all unsuccessful. In judgments dealing with the various interlocutory applications, a number of comments are made expressing concern at the extent of the interlocutory steps undertaken by Mr Collier and the lack of substantiation of his claims. In proceedings brought against Mr Collier by Elders Pastoral Limited, for non-payment for sheep purchased and upon which judgment the adjudication of bankruptcy was eventually made, Mr Collier alleged that Holland J (who had dismissed an appeal by Mr Collier on the contractual claim) was biased. The appeal to the Court of Appeal on those and other grounds was dismissed on 16 August 1991.

[46] The second wave of proceedings instituted by Mr Collier began in 1995. A number of the proceedings referred to below arose out of Mr Collier’s apparent dissatisfaction with the conduct of his proceedings in Collier v Creighton by the Official Assignee. Those relied upon by the applicant and instituted by Mr Collier are: (10) Collier v Butterworths New Zealand Limited (CP 27/95), a claim for defamation arising out of comment in Current Law, in a report of the judgment of Roper J in Collier v Creighton that it was a “cautionary tale for solicitors: a vengeful ex-client searching through old files was awarded $10,000 …”. The report was made in a 6 September 1991 issue of Current Law. When Mr Collier issued proceedings on 14 March 1995, therefore, the cause of action was more than two years old and required leave under the Defamation Act 1992. The claim, brought without leave, was struck out by Fraser J on 19 May 1995. Application for leave was also refused. Mr Collier appealed both decisions of Fraser J but the appeals were out of time and the Court of Appeal held that no appeal was in existence. Mr Collier appealed for leave to appeal to the Privy Council which was declined for lack of jurisdiction by the Court of Appeal. (11) Collier v Butterworths (No 2) (CP 138/97), a claim commenced on 5 September 1997 claiming in negligence rather than defamation on the same facts as alleged in CP 27/95. The proceedings were struck out in December 1997 by Master Venning who accepted the submission for Butterworths that the claim was an abuse of process, simply seeking to re-litigate the earlier claim and avoid the limitation provisions of the

[2001] NZAR 137 at 153

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Defamation Act 1992. Mr Collier applied for review of the decision of Master Venning which was declined on 16 March 1998 by Young J. An oral application by Mr Collier for leave to appeal from Young J’s decision directly to the Privy Council was also declined. (12) Collier v Jones (CP 190/96) instituted in November 1996. These proceedings were part of a group instituted by Mr Collier as a result of his dissatisfaction with the conduct of Collier v Creighton. CP 190/96 was a claim against the first barrister instructed by the Official Assignee in relation to the Collier estate. Mr Collier claimed breach of fiduciary duty arising out of the conduct in the Collier v Creighton proceedings. General and exemplary damages of $220,000 were claimed. The allegations in the statement of claim included:

• Mr Jones’ participation in a conspiracy against Mr Collier. • Conflict of interest involving Mr Jones’ claimed relationships with Mr Creighton, Cavell Leitch, Young Hunter, the Official Assignee’s wife and the insurers of both Cavell Leitch and Mr Creighton. • “Meddling” in the appeal. • Perjury by Mr Jones. • Improper conduct by Mr Jones in a judgment striking out part of the statement of claim.

Robertson J recorded Mr Collier’s contentions in argument that the claim was based upon his perception of an “incestuous nest” and “the old boys’ network”.

Mr Collier’s claims were dismissed at a hearing before Hansen J in March 1999. Hansen J described some of the allegations as “scurrilous innuendo” and concluded in relation to the allegation of perjury:

Mr Collier has failed to establish, even on the simple balance of probabilities, which fails to reflect the seriousness of the criminal allegations he has made, the perjury he complains of.

The Judge considered that the steps taken in the litigation by Mr Jones which had been characterised as “meddling” in the claim were “in fact, in Mr Collier’s best interest”. Indemnity costs were awarded against Mr Collier in the sum of $45,000, Hansen J in his costs judgment of 24 May 1999 expressing the view that:

It seems to me that any review of the available documentation and evidence must have made it plain to any person approaching the issue objectively that there was little, or no chance, of these proceedings succeeding.

In a memorandum subsequently filed in Court in support of an application for stay of execution on the costs judgment pending appeal, Mr Collier referred to his perception of bias against him on the part of Hansen J.

(13) Collier v Panckhurst (CP 191/96). These proceedings were filed in November 1996. In them Mr Collier claimed that

[2001] NZAR 137 at 154 Mr Panckhurst, counsel to the Official Assignee, had given biased advice to the Official Assignee in breach of a fiduciary duty and duty of care owed to Mr Collier. $400,000 in damages was claimed. In the statement of claim, allegations were made of Mr Panckhurst’s involvement in a conspiracy arising out of links between Mr Panckhurst, Tipping J (who had been counsel in an action brought by Mr Collier’s sister and her husband), Mr Creighton, Young Hunter, the Official Assignee and Mr Till (the solicitor for another party in the litigation).

AYCEID ServicetoService Page 15 of 17 85 Attorney-General v Collier

The proceedings were struck out by Robertson J on 26 May 1997 on the basis that, even if the facts could be established, the allegations of conflict of interest, breach of fiduciary duty or negligence, could not be sufficient to provide a foundation for a cause of action:

[U]pon analysis, the statement of claim does nothing more than assert a number of unrelated and uncorrected matters. There is not a scintilla of connection or interrelationship which could give rise to a substantial cause of action.

This judgment was appealed by Mr Collier to the Court of Appeal which on 6 September 1999 dismissed the appeal, finding the claims “so obviously hopeless” that detailed consideration of the arguments, most of which “simply missed the point” was unnecessary. On 23 September 1999 Mr Collier applied for conditional leave to appeal to the Privy Council.

(14) Collier v Official Assignee (CP 192/96). These are proceedings filed against the Official Assignee in November 1996. The relief claimed is $2.5m. The claims arise out of the Official Assignee’s conduct of the Cavell Leitch proceedings. The statement of claim alleges breach of duty of care in the conduct of the proceedings. It contains little in the way of particulars. These proceedings have not been progressed by the respondent. (15) Collier v Creighton (CP 30/98). In March 1998 Mr Collier began a new action in the High Court against Creighton, claiming that the original judgment had been obtained by fraud. In addition to the relief sought in the original claim the new claim seeks general and exemplary damages of $300,000. The statement of claim alleges misconduct on the part of counsel and solicitors for Creighton and claims relief against them as well as Creighton.

The new claim was struck out by Master Gambrill on 7 December 1998, in a judgment which expressed concern about both the prolixity of the proceedings and the lack of specificity in the allegations of fraud made. The Master concluded that the pleading was “vexatious, frivolous, has no merit and is an attempt to re-litigate causes of action already adjudicated upon”. It was based upon “the same factual evidence as the first proceedings which was barred by a limitation defence. The delays have been extensive.”

Mr Collier applied for review of the Master’s decision which was dismissed by Hansen and Chisholm JJ in September 1999 on

[2001] NZAR 137 at 155 the basis that there was no prospect of any of the allegations succeeding.

(16) Collier v Attorney-General (counterclaim in CP 57/98). In response to the present application by the Attorney-General, Mr Collier filed a counterclaim. Five causes of action were claimed in the counterclaim.

• A claim that the Attorney-General conspired to defeat the course of justice. • The Official Assignee is claimed to have conspired with a firm of solicitors to defeat the cause of justice. • A claim in defamation, the relevant publication being the report by radio and newspaper of the institution of these proceedings. Damages in the sum of $2m were sought. • A claim in negligence, again alleging negligence in the administration of the respondent’s bankrupt estate by the Official Assignee. • A claim based on the alleged failure by the Attorney-General, whilst Minister of Justice, and by the Attorney- General, on behalf of the Minister of Commerce, to take certain actions. Exemplary damages of $1m were

AYCEID ServicetoService Page 16 of 17 86 Attorney-General v Collier

claimed together with general damages of $20,000 for worry, stress and strain arising out of the bankruptcy and attendant proceedings.

The counterclaim was struck out by Master Faire on 20 October 1998. The Master held that the pleading had not been justified or explained and that the alleged cause of action was misconceived.

Decision

[47] We are satisfied that the grounds of the application have been amply made out. The proceedings upon which we rely in coming to the conclusion that Mr Collier has persistently and without any reasonable ground instituted vexatious legal proceedings include litigation instituted by Mr Collier which has been struck out, litigation found to be wholly without merit after hearing and litigation instituted out not pursued.

[48] The proceedings which have been struck out were all on their face, vexatious proceedings. There are four such proceedings filed by Mr Collier since 1996. They are Collier v Butterworths (No 2) (CP 138/97), Collier v Panckhurst (CP 191/96), Collier v Creighton (No 2) (CP 30/98) and Collier v Attorney-General (counterclaim) (CP 57/98). Two of these were attempts to re-litigate earlier actions. In addition, the attempt to have the Court of Appeal by originating application reconsider Collier v Creighton (No 1) is a further attempt at re-litigation which can be properly classified as proceedings instituted by Mr Collier.

[49] Although it will not always be possible in respect of proceedings filed and not pursued to draw a confident inference that they are vexatious, the number of proceedings instituted by Mr Collier in that category, together with the extravagance of the claimed relief and the lack of particulars of serious allegations, principally against professional people, permits us to draw the inference that the proceedings instituted which have not been progressed by the respondent, are vexatious. There are six in that category identified above, including those numbered as 4–8 and more recently, Collier v Official Assignee (CP 192/96).

[2001] NZAR 137 at 156

[50] In two other proceedings, while strike-out may not have been appropriate, the hearing on the merits resulted in such comprehensive rejection of Mr Collier’s claims that the proceedings are properly to be characterised as vexatious. They are Collier v Equitable Life and General Insurance Co Ltd (CP 265/89), where the claim was found to be wholly unmeritorious despite an immaterial technical non-disclosure not raised in the statement of claim and Collier v Jones (CP 190/96) where the claim was held to be totally without merit.

[51] While we are not prepared to conclude that Collier v Creighton (No 1) was vexatious litigation, the litigation it spawned is quite different. Those proceedings are characterised by escalation in the seriousness of the claims, particularly the invocation of conspiracy upon the flimsiest of connections.

[52] Although we have preferred not to rely upon the excessive number of appeals which demonstrate Mr Collier’s inability to accept adverse results, the attempts to seek a new trial by originating application to the Court of Appeal in Collier v Creighton, as already indicated is properly to be taken as an attempt not to exhaust an existing claim but to bring a fresh one.

[53] In considering whether grounds for relief have been made out, it is proper to consider the proceedings overall. It is necessary to be satisfied of Mr Collier’s persistence in instituting vexatious proceedings. The gap in the filing of proceedings is explained by Mr Collier’s bankruptcy. The fact that so much of the more recent litigation is derived from the earlier litigation, indicates his persistence and loss of proportion. Overall, the number of proceedings itself demonstrates that Mr Collier has persistently and without reasonable care instituted vexatious legal proceedings.

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[54] Even where grounds are made out, the Court has a discretion as to whether to grant the relief sought. In exercising that discretion, we think it proper to take into account the overall conduct of the vexatious proceedings.

[55] Although the numerous interlocutory applications and appeals which have been without merit are not properly to be taken into account in deciding whether grounds for the exercise of the discretion are made out under s 88A, in our view the way in which the proceedings have been conducted is relevant to the exercise of the discretion. The continuation of such meritless applications after the institution of the present proceedings demonstrates the real likelihood that Mr Collier will continue to pursue improper ends through litigation.

[56] The widening circle of those to whom Mr Collier’s sense of grievance extends and the escalating seriousness of the allegations made against them, indicated in the counterclaim allegations made in the present application, demonstrate the risk. The history of all proceedings relied upon by the applicant demonstrates that the consideration extended to Mr Collier by successive Courts has not encouraged him to exercise restraint. There must be serious doubts that Mr Collier is capable of modifying his behaviour himself. It may be that the actions taken by Mr Collier have been out of a genuinely held sense of grievance. That does not detract from the unacceptability of his actions and the strain he is

[2001] NZAR 137 at 157 imposing, both upon the legal system and those litigants unfortunate enough to be the subject of his sense of grievance.

[57] We are satisfied not only that proper grounds have been made out, but that this is a proper case to grant the order sought. It does not prevent Mr Collier from gaining access to the Court to pursue legitimate claims, but it ensures that such claims are subject to supervision to ensure the restraint Mr Collier is unable to exercise himself.

[58] The orders of the Court are: 1. No civil proceedings shall without the leave of the Court, be instituted by Mr Collier himself or by his agent. 2. All civil proceedings instituted by Mr Collier are stayed and may not be continued by him or by his agent without leave.

Reported by: Lindy Course, Barrister

End of Document

AYCEID ServicetoService Attorney General v Purvis (Grepe and Loam Order), 2003 WL 23014742 (2003) 88

Her Majesty's Attorney General v Purvis

No Substantial Judicial Treatment

Court Queen's Bench Division

Judgment Date 3 December 2003 CO/649/2000

CO/3712/2000

High Court of Justice Queen's Bench Division Divisional Court

Neutral Citation Number: [2003] EWHC 3190 (Admin), 2003 WL 23014742

Before: Lord Justice Buxton Mr Justice Jackson

Wednesday, 3rd December 2003

Representation

Mr S Kovats (instructed by Treasury Solicitors ) appeared on behalf of the Claimant. The Defendant did not appear and was not represented.

JUDGMENT

LORD JUSTICE BUXTON:

1.. There is no appearance by Mr Purvis. Is that right? The matter has been called outside, that is correct? Thank you. Mr Kovats, we have an application from Mr Purvis for this hearing to be adjourned which the Court is not minded to grant, for reasons which it will indicate in a minute. On that basis we will then hear the substantive application. We will not need to call on you on that application unless you want to tell us anything. We will then proceed to Mr Purvis' renewed application for judicial review of the decision of His Honour Judge Baker in Exeter in 1999.

2.. LORD JUSTICE BUXTON: There are two matters before the Court. The first is an application by Her Majesty's Attorney-General for the respondent, Mr Paul Purvis, to be declared a vexatious litigant in respect of all civil proceedings. That application was originally moved as long ago as October 2000. The reasons for the delay since then will become apparent in the course of the various judgments the Court is going to have to deliver this morning.

3.. The second matter is a renewed application by Mr Purvis for permission to move for judicial review of a decision of the Crown Court taken in the year 1999, permission having been refused on paper by Moses J as long ago as the 12th April 2000. There has been some correspondence between Mr Purvis, the Attorney-General and the Court with regard to the adjournment of today's proceedings. The application was originally made by Mr Purvis' son, ostensibly on his behalf, and was rejected by me on paper. As a result of that Mr Purvis has now himself submitted a lengthy, that is to say five page, application, seeking to adjourn this case. My Lord and I have carefully considered that application. We are not minded to grant it. There are two different types of reason why we do not grant the application. The first is that the material relied on by Mr Purvis, in support of this application, is plainly insufficient. Secondly, and quite separately, having given considerable attention to the history of this case, it is absolutely clear that Mr Purvis has no intention whatsoever of attending at any hearing at which his responsibilities might be finally determined.

4.. We deal with those two matters in turn. The first is as to the inadequacy of the present application. Mr Purvis first says, as had his son on his behalf, that he is not fit to attend let alone to conduct a hearing, in other words he asks for the matter to be adjourned on grounds of ill-health. He said in his previous application that he had been recently admitted to hospital, that is on 19th November and was then “still a patient”. No information is given in this application as to the nature of Mr Purvis' disability or the circumstances of it. More particularly, there is no medical evidence, not even a note of his admission to hospital, adduced in support of this application. In view of Mr Purvis' repeated history in making claims about his health which have turned out not to be justified, we are not prepared, and in any event would not be prepared irrespective of Mr Purvis' history, to act on those assertions without any form of medical evidence whatsoever.

5.. When we speak of Mr Purvis' history in this regard, it is necessary to mention that the principal proceedings were held up for some 2 years by reason of Mr Purvis claiming ill-health but not producing any, or certainly not adequate, evidence thereof, with the result that the Court ordered he should be medically examined by a doctor appointed by the Attorney-General. There were endless difficulties about making those arrangements. We have looked at the history of them carefully and we are quite satisfied that Mr Purvis deliberately caused difficulties in order to avoid attending a medical examination. Furthermore, evidence that is now before the Court, filed in February 2003, demonstrates that, during the period when Mr Purvis was claiming that he was medically unfit to appear in this Court, he was actively conducting litigation in other courts. The history of that is summarised in an affidavit, dated 26th February 2003, sworn by Mr Edward George Holder. That recites a number of appearances in 2002 by Mr Purvis in various courts, all of which are verified from court documents, which we have inspected. Putting it shortly, it is known that between 9th May and 22nd August 2002 Mr Purvis attended court on five occasions, twice in the Magistrates' Court in Cornwall, twice in the Royal Courts of Justice (in this very building) and once in the Bristol District Registry.

6.. None of that of course establishes he is fit to be here today. What it does show, bearing in mind that throughout the period the issue of Mr Purvis' health was said to be relevant to whether

© 2021 Thomson Reuters. 2 Attorney General v Purvis (Grepe and Loam Order), 2003 WL 23014742 (2003) 90 he could appear in this Court, is that no assertion as to his health can be accepted without proper evidence. Proper evidence in this case is not available.

7.. The other grounds that Mr Purvis sets out I am not going to go through verbatim, because if needs they can be viewed to his application dated yesterday. They include the following: 1. Complaints about the failure of the Legal Services Commission to advance community funding to him. The Legal Services Commission made an order in 2001 that no further application would be accepted from Mr Purvis for a period of 5 years, because his conduct had been abusive of the community — funding provisions. Mr Purvis has on a number occasions said he intends to seek judicial review of that order. He has not done so. The order was of course an extreme one. We have no doubt that the Legal Services Commission would not have made it unless they had grounds for having the very gravest concern about Mr Purvis' calls one of public funds. 2. He complains that he has not received notice of this hearing. We are not prepared to act on that assertion. First of all, even if he did not receive the original notice he is well aware now of the hearing. Secondly, he appeared before this Court, presided over by Lady Justice Hale, on 12th March 2003, on which occasion the Court not only indicated that the matter would have to be heard sooner rather than later, so Mr Purvis was in a position where he needed to get on and make such preparation as he could do so; but also various orders were made, including that Mr Purvis should file evidence, in so far as he wished to rely on it, within a short period of time. Mr Purvis has made no attempt whatsoever to comply with that order, so even if he were here today, it is more likely than not that the court will not be prepared to hear him. 3. He complains that various papers and documents are held either by his trustee in bankruptcy or by the police, having been seized for various purposes which Mr Purvis does not specify. Mr Purvis gives no indication at all of what there is or might be in those documents that would assist him in meeting this claim by the Attorney-General, nor does he appear to have given any such indication to this Court when he appeared before it on 16th March.

8.. In all these circumstances, therefore, Mr Purvis' grounds for an adjournment are unacceptable and we do not grant them.

9.. We have already said that, separately and independently, we would not be prepared to adjourn this matter further. Mr Purvis has a history of failing to attend, and of seeking to avoid going to trial on medical grounds, which dates back before these proceedings were launched. That is clear from the judgment of the Court of Appeal (Criminal Division) on 31st January 2001, in an appeal by Mr Purvis against his conviction at the Crown Court for various offences of dishonesty. The chronology of that case and the chronology of the trial, including various matters of recourse to medical complaint, is set out in great detail in paragraph 36 of the judgment in that appeal, delivered by Rose LJ. It is quite clear that Mr Purvis' attitude was evasive from start to finish. Secondly, while we are not going to go into the detail of the difficulties that have been created by him with regard to the medical inspection that was ordered by this Court, we have already pointed out that his conduct was completely inconsistent with his repeated claim that he was physically unfit to appear in a Court in this building.

10.. Even therefore, if there were otherwise arguable grounds for adjourning this matter today, we would not be prepared to adjourn it. The application for adjournment is therefore dismissed.

11.. I now turn to the application by Her Majesty's Attorney-General. In dealing with this matter, I do not intend to set out in detail the incidents on which the Attorney-General relied in his application, as long ago, as we have said, as 10th October 2000. They are set out in an affidavit sworn on 9th October 2000 by a Mr Roger Lutterodt on behalf of Her Majesty's Attorney-General. I will, however, refer to the respects in which, in my view, it is amply demonstrated that the history of litigious behaviour shown by Mr Purvis justifies the application that the Attorney-General makes.

12.. This is not case, like some cases that come before this Court, where a person has become so obsessed about a single incident that he or she has engaged in multifarious litigation aimed at one single person or one single circumstance. Mr Purvis appears to be somebody who litigates, almost at will, about every matter that he considers to inconvenience him. In so doing he has displayed a number of characteristics that fall fully within the category of vexatious litigation. I will go through those categories in turn.

13.. First of all, Mr Purvis has pursued a number of civil cases dishonestly. That is particularly the case in respect of his litigation against the Norwich Union Fire Insurance company under reference number TA602465 which is the third incident referred to by Mr Lutterodt. In that litigation Mr Purvis claimed, firstly, that items belonging to him had been stolen from third party premises on the 2nd July 1994. Investigation showed that the corroboration of Mr Purvis' ownership of those items came from a person who was said to be a Mr Warren who was Mr Purvis' accountant. That was untrue. Mr Warren was an alias adopted by Mr Purvis. In the Crown Court proceedings, to which we have already referred, that false claim formed count 1 of the indictment upon which Mr Purvis was convicted. Secondly, Mr Purvis claimed that cash and a gold watch had been stolen from him, Mr Warren again providing corroboration of that fact. The Norwich Union in fact paid that claim and had to counterclaim in respect of it in the proceedings to which I have already referred.

14.. Those false statements formed count 3 of the indictment in the Exeter Crown Court in respect of which Mr Purvis was also convicted by the jury. He also sued, in respect of a claim which the Norwich Union had refused to pay. The Norwich Union did not accept that the claim was genuine and they were right to do so, the nature of that claim having formed count 5 on the indictment in the Crown Court at Exeter.

15.. Mr Purvis applied for summary judgment in those civil proceedings. The case was eventually struck out, but in the course of those proceedings he swore that the allegations that he made were true. They were not; they were false. The fact that he was convicted in the Crown Court does not of course directly affect the present application but what it does demonstrate, beyond peradventure, is that the proceedings with which I am presently dealing were not only vexatious but also dishonest.

16.. Secondly, there are proceedings between Mr Purvis and the Abbey National Building Society under reference PZ00935, that is item 10 in Mr Lutterodt's affidavit. These proceedings came before His Honour Judge McIntosh on 21st July 1999. They took the bizarre form of an application by Mr Purvis to intervene in possession proceedings that had been brought by the Abbey National against Mr Warren. Mr Warren, as will be recalled, does not exist. He was found by the Crown Court to be a fiction invented by Mr Purvis. The judge's judgment, which I have read, did not have the benefit of knowing that that was so. Nevertheless, Judge McIntosh, at considerable length, indicated that even without that element to it, the proceedings were vexatious. But the real point about them is that the proceedings were not only vexatious but fraudulent through and through, and indeed admirably calculated, not only to harass the Abbey National Building Society but also to waste the time of the court, proceeding as they did on a wholly false basis.

17.. The third direct example of dishonesty is to be found in proceedings between Mr Purvis and the Commissioners of Customs & Excise, in the Crown Office, the Crown Office 1257 of 1997. This was an application to appeal out of time against a decision of VAT tribunal. Mr Purvis' application was on the basis that he had never received notice of the tribunal hearing: it will be recalled a claim that he makes in respect of this hearing, and indeed as was made in respect of many hearings over the years. In support of that application Mr Purvis made an affidavit dated 26th February 1998, in which he swore the application was true. One of the trustees in bankruptcy, who by that time had Mr Purvis' papers, being, as he put it, in his own affidavit suspicious of this claim, which on its face seemed unlikely, found within those papers the actual notice that had been served on Mr Purvis. It was clear therefore that the claims made in the action that I have just mentioned were not only vexatious but also dishonest.

18.. Secondly, actions had been brought in order simply to harass other persons. This is particularly the case in respect of the case of Purvis v Fawn which ended up under the title BS600818 and is item one in Mr Lutterodt's affidavit. I do not intend to set out the details of this case. It is quite clear that it was an unreasonable dispute with a neighbour, who was merely trying to lay a water course to his own property. Mr Purvis had no basis in law to object to that. He brought repeated proceedings in respect of the work. He sought wrongly to commit his opponent to prison. He sought to appeal out of time for a review of taxation costs that were awarded against him on the committal application. He sought many inappropriate orders for specific discovery and, in the action itself, he failed to pursue the matter making at least four applications for an adjournment, in front of different judges, and never getting on the with the matter, frequently again seeking an adjournment on the grounds of ill health. Those proceedings were, in my view, correctly regarded as the being abusive.

19.. Thirdly, Mr Purvis has taken proceedings against or in respect of his trustees in bankruptcy which have caused wholly unnecessary expense to the detriment of Mr Purvis' creditors. The two cases to which I would draw attention are first his action Purvis v The Official Receiver & Ors , that is item 5 in Mr Lutterodt's affidavit, under unique identification number Ch 208 of 1997. Again, I am not going to go through the proceedings in detail. They included claims alleging failure to deliver up tools of trade at a time when Mr Purvis said he was unfit to work, and claims that assets

© 2021 Thomson Reuters. 5 Attorney General v Purvis (Grepe and Loam Order), 2003 WL 23014742 (2003) 93 held by trustees belonged to third parties. Mr Purvis swore a number of affidavits in support of those allegations. The claims included wholly irrelevant and fanciful allegations not about what the trustees had done but about the conduct of the son of one of the teachers working at the school that Mr Purvis had been in charge of before being declared bankrupt. All these claims struck out by Jacob J in 1995 and 1997. On the latter occasion he awarded costs against Mr Purvis on an indemnity basis and made a Grepe v Loam order requiring further application to be made in writing to any Chancery judge. I would say in parenthesis that the cost order against Mr Purvis was one of an innumerable costs order often on indemnity basis made against him over the years. There was no reason to think that any single one of those orders has ever been obeyed.

20.. Mr Purvis then sought to remove the solicitors acting for the trustee, a wholly inappropriate application. That application was equally struck out by Jacob J, with the award of indemnity costs. Mr Purvis sought also and vexatiously to appeal against orders made by His Honour Judge Weeks QC, the Chancery Judge in Bristol who bore the burden of dealing with many of Mr Purvis' applications in respect of public examination and the bankruptcy. Mr Purvis stated, in that application, that he had been made bankrupt on the petition of Her Majesty's Customs and Excise and that he had an appeal against the relevant debt, due to be heard in the Divisional Court. He so swore. He thereby, on the basis of that application, persuaded a single judge of this Court to grant a stay on all bankruptcy proceedings until after that hearing. The truth was that Mr Purvis had not been made bankrupt on the petition of Her Majesty's Customs but on petition of the Royal Bank of Scotland. No debt owed to the Customs & Excise could affect the validity of the bankruptcy. The Official Receiver had to go to the trouble of coming to this Court to make that claim and demonstrate to this Court that Mr Purvis had not told the truth when he appeared before the Single Judge. This Court discharged the stay that had previously been awarded.

21.. There is no possibility that Mr Purvis did not understand the proper position. It is clear from the papers that Mr Purvis is an intelligent person. He has previously run a school, and he tells us, in a document before the Court, that he has a degree in law and also has acted as adviser to several government ministers. He had been present at the hearing of the bankruptcy petition before Chadwick J and must have known that the bankruptcy was not based upon any debt to Her Majesty's Customs.

22.. Secondly in the bankruptcy proceedings Mr Purvis issued a writ in the Queen's Bench Division 1997 P267, claiming damages against the trustees in bankruptcy for trespass to land by taking possession of his school. That of course is something that they were not merely entitled but obliged to do in order to bring in the property of the bankrupt. That action also was struck out by Jacob J in 1997, again with indemnity costs — costs no doubt that have not been paid.

23.. Other actions taken by Mr Purvis have been similarly vexatious. I have already referred to item 4 in Mr Lutterodt's list, that is to say Mr Purvis' action against the Commissioners of Customs & Excise. I do not need to say more than that. He also brought an action Purvis & Ors v Gledhill & Burtchaell 1997 P O94 . The defendants were two people who were running the school, Mr

Gledhill, the husband of the first respondent, having purchased the school from the trustees in bankruptcy.

24.. Mr Purvis claimed that one of his children was in fact beneficially entitled to the Manor School. Mr Purvis had not owned it. This claim was an example of Mr Purvis' habit of using his children, or their names, in pursuit of litigious intentions. The action was a vexatious attempt to prevent these two ladies, Mrs Gledhill and Mrs Burtchaell, from carrying on the school. Here again, Mr Purvis applied for summary judgment, and swore that what he complained of was true.

25.. This action was also struck out by His Honour Judge Weeks in June 1998, again with indemnity costs. The judge drew attention to the wildness of the allegations that Mr Purvis had seen fit to put forward in an entirely unspecified way. For instance, he draws attention to an allegation that malicious falsehoods and defamatory statements had been made by the two lady defendants knowing them to be false. The judge said this:

“This is a serious allegation to level against the teachers. No particulars are given as to what has been said, when or to whom. This amended statement of claim suffers from similar defects to that of the original statement of the claim. It is hopelessly vague, it is not a document to which the defendants can properly plead.”

As I have said the judge struck out those proceedings. Mr Purvis took his leave of His Honour Judge Weeks QC at the end of the proceedings in the following words:

“Yes, well you would always do. Absolute rubbish you are. I will see the end of you long before the end of me. You think you are protected. Just think about it very, very hard.”

26.. Not content with His Honour Judge Weeks' judgment, Mr Purvis then vexatiously and repetitiously started further proceedings under the heading TA 9702209, which were simply a repetition of the proceedings 1997 P094 that the judge had struck out. The judge struck them out again, observing that they were indeed repetitious.

27.. All of these cases show therefore an irresponsibly vexatious attitude to litigation with a substantial elements of dishonesty. They amply justify, in themselves, the order that the Attorney- General seeks.

28.. The Attorney-General has filed further material indicating that Mr Purvis continued to litigate after the events to which we have made reference, including an elaborate series of actions in respect of the trusteeship of his mother's will.

29.. There is one further aspect of the matter to which we should avert. When the matter originally came before this Court on 25th June 2001, the Court being presided over by Latham LJ, there

© 2021 Thomson Reuters. 7 Attorney General v Purvis (Grepe and Loam Order), 2003 WL 23014742 (2003) 95 was there was an application then again by Mr Purvis asking for the matter to be adjourned on grounds of ill-health. It was that application that was the source of all the difficulty about the medical examination to which we have already referred. The Court was satisfied, having seen the material to which I have already averted, that there was a very strong case for making an order. It therefore issued an order in an injunctive form up to the hearing of the application of further order in the terms of the section 42 order sought by the Attorney. It has not in my view been established, though I did make no final decision on that point, that Mr Purvis had been in breach of that order in itself. However, after the order was made, Mr Purvis continued his litigious activities by acting as McKenzie Friend or purporting to do so on behalf of various of his children.

30.. In October 2001, in a further hearing before this Court, presided over by Pill LJ, quite understandably the Treasury Solicitor expressed a concern about that practice on Mr Purvis' part. The point of departure for that difficulty was proceedings entitled Purvis, Osborne and Allen the Bristol County Court, heard on 10th August 2001 , where a Mr Tristan Purvis was listed Next Friend on behalf of the claimant and a Mr Paul Purvis acted as litigation friend to the Next Friend. They are apparently sons of the Mr Purvis with whom we are concerned; one of them at least was, as we understand it, a minor. The Court made an order on 16th October 2001, that Mr Purvis should be prevented:

“From acting as a Litigation Friend or McKenzie Friend or from nominating members of his family to act on his behalf in any proceedings whatsoever pending the hearing of the substantive application.”

There is significant evidence before the Court, summarised in the affidavit of Mr Holder, dated 26th February 2003, to which I have already referred, that indicates that Mr Purvis has not obeyed that injunction. I have already drawn attention to his litigious activity in 2002, and do not go back over that; but there is ample evidence, not just from statements but from actual court orders and from testimony by court officers including the Clerk of the Magistrates' Court in Cornwall that Mr Purvis has indeed acted on behalf of other people in a litigious role. This has three implications. First, as I have already said, it casts doubt about his medical claims and certainly requires them to be fully verified. The second is that Mr Purvis appears not to be prepared to obey orders of the court, a matter that although not directly relevant to his vexatious conduct is certainly a illuminating background to it. Thirdly, it is clearly necessary to maintain the order made by Pill LJ presiding in this Court on 16th October 2001. As I said, the case is plainly made out; there can be no defence to it.

31.. I would therefore order as follows. First, I would grant the order sought by Her Majesty's Attorney-General in this application of 10th October 2000 as a final order in terms there sought. Secondly, I would continue, until further order, the order made by this Court in respect of Mr Purvis acting as a Litigation Friend from the order made by this Court on 16th October 2000. Thirdly, I would order that any application made to a High Court judge under section 42 for permission to bring civil proceedings should have annexed to it a copy of the judgment delivered today. Fourthly,

© 2021 Thomson Reuters. 8 Attorney General v Purvis (Grepe and Loam Order), 2003 WL 23014742 (2003) 96 that any application to any court for permission to act as a McKenzie Friend shall have annexed to it a copy of the order of 16th October 2000 and of the order made today and of this judgment.

32.. I would make the latter provision in particular, because it is clear from the events that happened in 2002 that Mr Purvis did not tell several of the courts that he asked for permission to appear as a McKenzie Friend in that he was inhibited from so doing without permission.

33.. That, I think, concludes matters as far as my judgment is concerned.

MR JUSTICE JACKSON:

34.. I agree with all that my Lord has said and I agree that this Court should make an order in the terms just outlined.

35.. Mr Purvis, by his conduct, has shown himself to be a habitual litigant who knowingly prosecutes claims and pursues applications without any merit. By these litigious activities Mr Purvis has caused distress or inconvenience to many individuals.

36.. The grounds for making a civil proceedings order, under section 42 of the Supreme Court Act 1981 , are clearly established.

37.. LORD JUSTICE BUXTON: We turn to Mr Purvis' application for permission to move for judicial review in respect of a decision of the Crown Court to continue with the criminal trial that we have already referred to in his absence. This application was refused on paper by Moses J. It has been held up for the same reasons as the Attorney-General's application has been held up. We are now going to deal with it today.

38.. The application is completely hopeless for two separate reasons. The first is that, as Moses J pointed out, it related to a trial on indictment and therefore was not open to be heard in the Administrative Court by reason of section 29(3) of the Supreme Court 1981. Secondly, and separately but illustrating the wisdom of section 29(3) , the matters that Mr Purvis complained of, that is to say, the fact that the trial had gone on in his absence, were the subject of his appeal to the Court of Appeal (Criminal Division) after he had been convicted. He therefore had the perfectly appropriate tribunal to which to go, other than the Divisional Court, and that tribunal has fully and thoroughly dealt with his complaints and has found that there is no basis in any of them. Both therefore in form and in substance this application is wholly inappropriate and we dismiss it.

39.. MR JUSTICE JACKSON: I agree.

40.. LORD JUSTICE BUXTON: Is there anything else for us to do? Can we just thank those instructing you for the trouble they have had to take over this case which has made it much easier to deal with. We are very grateful for that. (Pause).

41.. I am told it is normal that you do not ask for your costs. Clearly, you do not wish to join the list of people who are owed money Mr Purvis. The Associate says we must record that, so we do. Thank you very much.

Crown copyright

HM ADVOCATE v FROST

No 12 Extra Division 29 November 2006 [2006] CSIH 56

Her Majesty’s Advocate, Petitioner—WJ Wolffe Martin Frost, Respondent—Party Process – Vexatious litigant order – Whether proof necessary – Whether compatible with European Convention of Human Rights and Fundamental Freedoms – Whether appropriate to grant in the circumstances – Vexatious Actions (Scotland) Act 1898 (61 & 62 Vict, cap 35) Human rights – Vexatious litigant order – Whether compatible with European Convention of Human Rights and Fundamental Freedoms – European Convention of Human Rights and Fundamental Freedoms, Art 6 – Vexatious Actions (Scotland) Act 1898 (61 & 62 Vict, cap 35) Words and phrases – ‘‘Instituted’’ proceedings – ‘‘Vexatious legal proceedings’’ – ‘‘Without any reasonable ground’’ – ‘‘Whether in the Court of Session or any inferior court’’ – Vexatious Actions (Scotland) Act 1898 (61 & 62 Vict, cap 35), sec 1 Section 1 of the Vexatious Actions (Scotland) Act 1898 provides it is lawful to the Lord Advocate to apply to the Inner House for an order, and if he satisfies the court that any person has habitually and persistently instituted vexatious legal proceedings whether in the Court of Session or in any inferior court and whether against the same or different persons, the court may order that no legal proceedings shall be instituted by the respondent without leave of an Outer House judge. The Lord Advocate sought an order under sec 1 of the 1898 Act. The Lord Advocate averred, inter alia, that the respondent had habitually and persistently instituted vexatious legal proceedings without any reasonable grounds; in so far as the merits of claims and counterclaims had been adjudicated upon they had been unsuccessful; in certain cases the respondent withdrew or abandoned before the merits were considered; he had taken assignations of claims so that he could appear as a party litigant and acted as a procurator or advocate for other persons; judges had repeatedly commented adversely on his pleadings and submissions; he had been sequestrated and parties had little prospect of recovering expenses against him. The respondent argued (1) the petition was wrongly directed against him as an individual as the assignations had created a partnership in the form of a joint venture; (2) there should be a proof in the petition; (3) the petition should be refused as he had succeeded in a number of litigations. Held that: (1) for a proper basis for an application, there must be at least more than one proceeding, but it was not possible to specify a minimum number of proceedings and something would depend on the nature of the proceedings and the circumstances in which they were brought (para 27); (2) a person might be said to have instituted legal proceedings if, in a counterclaim, he had commenced proceedings which might have been the subject-matter of a separate action (para 28), or if he had enrolled a reclaiming motion in an action to which he was a party (para 29); (3) legal proceedings might properly be seen as vexatious if devoid of reasonable grounds; however, legal proceedings might properly be seen as vexatious even if there were reasonable grounds for instituting such proceedings, although proceedings instituted in those circumstances would not be a sufficient basis for an application under sec 1 of the 1898 Act (para 30); (4) the court might conclude that certain proceedings had no reasonable ground simply on the basis that the proceedings failed or were abandoned, and the court could proceed on the basis of determinations made by other judges in the proceedings founded upon (para 31); (5) the proceedings which might be the basis for an application must be proceedings in Scotland (para 32); (6) the court was not required to make an order even if it concluded that the preconditions for an order had been satisfied: the section conferred on the court a discretion to make an order if in all the circumstances it 99 216 HM Advocate v Frost 2007

considered it appropriate (para 33); (7) the petition was correctly directed at the respondent as an individual (para 39); (8) the court was prepared to proceed on the basis of decisions and opinions of other judges in the litigations which were the basis of the application, and to do otherwise would be to open up issues already litigated and decided against the respondent (para 40); (9) the fact that in certain cases the respondent may have succeeded is irrelevant to the question of whether the matters in sec 1 of the 1898 Act had been established (para 41); (10) the granting of leave from a Lord Ordinary to proceed without the requisite signature on the initiating summons did not necessarily lead to the conclusion that the proceedings were not vexatious and without reasonable grounds (para 42); (11) the making of an order under sec 1 of the 1898 Act would not be incompatible with Art 6 of the European Convention on Human Rights and Fundamental Freedoms (para 43); (12) in coming to the conclusion that the appropriate course was to make the order sought, the court was particularly influenced by the fact that the respondent had made a practice of taking assignations from other persons of their interests in litigation, involving making reckless and unfounded allegations and subjecting his opponents to trouble and expense with no hope of a remedy in expenses as the respondent had been sequestrated, and the diversion of scarce public resources in the court system; and prayer of petition granted. Her Majesty’s Advocate petitioned the Inner House of the Court of Session for an order under the Vexatious Actions (Scotland) Act 1898 against Martin Frost. Cases referred to: Advocate (Lord) v Bell 2002 SLT 527 Advocate (Lord) v Cooney 1984 SLT 434 Advocate (Lord) v Henderson 1983 SLT 518 Attorney-General v Adoko [2004] EWHC Admin 1409 Attorney-General v Barker [2000] 2 FLR 1; [2000] 1 FLR 759; [2000] Fam Law 400 Attorney-General v Covey [2001] EWCA Civ 254 Attorney-General v Jones [1990] 1 WLR 859; [1990] 2 All ER 636 Attorney-General v Matthews [2001] EWCA Civ 254 Bhamjee v Forsdick and ors [2003] EWCA Civ 1113; [2004] 1 WLR 88; [2003] CP Rep 67 Cintec International Ltd v Parkes and Frost [2003] EWHC 2328; (2004) 27 (2) 1 PD 27011 Frost and anr v Unity Trust Bank plc, unreported Frost and McNamara v Alexander Stone & Co CSIH, First Division, 1 Apr 2004, unreported; CSOH, Lord Bracadale, 14 Feb 2003, unreported Frost and Parkes v Cintec International Ltd [2005] CSOH 119 McNamara and Frost v McLeish and Peebles, unreported Pentland-Clark v John H Macfie WS and Gordon Innes WS Lord Hardie, 21 May 2004, unreported Tods Murray WS v Arakin Ltd 2000 SLT 758; 2000 SCLR 804 Tods Murray WS v Arakin Ltd CSOH, Lady Smith, 31 Oct 2003, unreported Unity Trust Bank plc v Frost 2 Oct 2003, unreported Unity Trust Bank plc v Frost and Anderson 1997 SLT 1358 Unity Trust Bank plc v Frost and Anderson [2005] CSOH 33 Unity Trust Bank plc v Frost and anr (No 2) 2001 SCLR 344 The cause called before an Extra Division, comprising Lord Osborne, Lord Carloway and Lord Kirkwood, for a hearing on the summar roll. At advising, on 29 November 2006, the opinion of the Court was delivered by Lord Osborne—

Opinion of the Court—

Background circumstances [1] In this petition, the petitioner seeks an order under sec 1 of the Vexatious Actions (Scotland) Act 1898 (61 & 62 Vict, cap 35) (‘the 1898 Act’), to the effect that: 100 SC HM Advocate v Frost 217

‘[N]o legal proceedings shall be instituted by the respondent in the Court of Session, Sheriff Court or any other inferior court unless the respondent first obtains leave of a judge sitting in the Outer House of the Court of Session, having satisfied such a judge that such legal proceedings are not vexatious and that there is a prima facie ground for such proceedings in terms of section 1 of the Vexatious Actions (Scotland) Act 1898’.

The respondent has lodged answers to the petition. The hearing on the petition and answers commenced on 25 October 2005, running until 27 October 2005, when it had to be discontinued on account of a lack of time and the respondent’s indis- position. The hearing was resumed, at an adjourned diet on 31 October 2006. At the commencement of the adjourned diet, counsel for the petitioner moved the court to allow amendment of the petition and answers in terms of a minute of amendment for the petitioner and answers for the respondent. This motion, not being opposed, was granted. [2] In the petition, the petitioner avers details of the respondent’s involvement in a number of legal actions, the procedure which occurred in those actions and, where possible, their outcome. We refer to the petition, as amended, for its terms. In statement III of the petition, the petitioner summarises the basis of the petition in this way:

‘[T]he respondent has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for doing so. In so far as the merits of the actions and counterclaims instituted by the respondent and condes- cended on above have been adjudicated upon by a court they have been unsuccessful. In Frost v Unity Trust Bank plc, Frost & McNamara v Alexander Stone & Co and McNamara & Frost v [McLeish] and Peebles the respondent abandoned or withdrew from the proceedings before the merits were considered. In Frost v Bulman [1996 SLT 316] he allowed decree of absolvitor to pass against him by default. He has taken appeals without success. He has regularly but without success advanced unmeritorious motions that judges should decline to hear particular matters. The respondent has taken assignations of claims so that he can appear before the court as a party litigant. He has acted as a procurator or advocate for other persons. He has sought to use legal process for reasons unconnected with the issues in the case. His conduct of proceedings has involved the court and other parties in unnecessary procedure, time and expense. Judges have repeatedly commented adversely on his written pleadings and oral submissions. The respondent has been sequestrated and parties who succeed in obtaining an award of expenses against him have little prospect of recovering those expenses.’

In his answer 3, the respondent avers that, in his opinion, ‘the petition paints an unrepresentative, contradictory and often factually incorrect or distorted picture’. That contention is elaborated in the succeeding averments, to which we refer for their terms.

Submissions on behalf of the petitioner

[3] At the outset of the hearing, counsel for the petitioner drew our attention to the fact that, at an earlier stage in the proceedings, the respondent had offered an undertaking. The minute of proceedings in the petition showed that, on 14 December 2004, the respondent undertook not to raise any further proceedings in Scotland unless such litigation had been put before a judge of the Court of Session and that judge was satisfied that that litigation had prima facie grounds and was not vexatious. Counsel for the petitioner stated that the petitioner did not accept that 101 218 HM Advocate v Frost 2007 undertaking. In that connection he drew our attention to Attorney-General v Adoko. In that case, Collins J expressed the view that an undertaking in lieu of a finding under sec 42 of the Supreme Court Act 1981 (cap 54), the counterpart of sec 1 of the 1898 Act, was likely to be inappropriate in many, if not most, cases. [4] Counsel for the petitioner moved the court to grant the prayer of the petition. He drew our attention to certain developments in some of the litigations referred to in the petition, which had occurred since it was prepared. In relation to the contention of the respondent that the petition did not give an objective and accurate picture, it had to be made clear that, while the respondent might be involved in litigations beyond those mentioned in the petition, the petitioner was not a party to those actions nor had they been drawn to his attention. The present petition had been brought upon the basis of material that was available to the petitioner. This court could make an order under sec 1 of the 1898 Act if it held that the requirements of that enactment had been satisfied in relation to some cases, regardless of what might be the position in others. However, the matter was one for the discretion of the court, in the final analysis. [5] The decision in Attorney-General v Jones showed that a defendant who made a counterclaim, whether by way of defence or otherwise, instituted proceedings in respect of the counterclaim, just as a plaintiff instituted proceedings in respect of a claim, as appeared from the observations of Lord Donaldson of Lymington MR (p 861). What was said in Bhamjee v Forsdick and ors highlighted the damaging impact of persons who instituted groundless litigation on the court system. What was true in England was equally true in Scotland. [6] The petitioner accepted that sec 1 of the 1898 Act differed from the equivalent English legislation. A consequence of that was that incidental motions in existing proceedings would not be relevant to an application under sec 1 of the 1898 Act. However, the bringing of counterclaims, or the enrolling of reclaiming motions, could be taken into account, since they involved the institution of legal proceedings. [7] There was a further feature of the public interest to which the court ought to have regard. That was the need to protect members of the public from what could be described as unqualified representation. In this connection, counsel referred to the averments in the petition concerning the case of Tods Murray WS v Arakin Ltd, which was founded on by the petitioner. Counsel referred to a series of productions containing opinions delivered by several judges in this case. What emerged from this material, it was submitted, was that the respondent had developed a practice of taking assignations from litigants, sisting himself as a party to the litigations on the basis of the assignations and then proceeding to litigate as a party litigant in the cases of others. This had been done, not once, but many times. It could be said, to use the words of sec 1 of the 1898 Act, that it had been done ‘habitually and persistently’. [8] Counsel next referred to the judgment of Laddie J in Cintec International Ltd v Parkes and Frost which contained numerous criticisms of the respondent’s conduct as an advocate in that case (particularly paras 81–83). Although those proceedings had been brought in the High Court in England, it was submitted that they described relevant conduct for the purposes of sec 1 of the 1898 Act. [9] Counsel went on to put before us a number of cases in which the proper approach to applications such as this one had been explained. The first of these was Lord Advocate v Henderson. The basis of that petition was the bringing of six actions, one of which had been successful and five of which had failed. That was considered sufficient for an order to be made under sec 1 of the 1898 Act. The court, in that case, 102 SC HM Advocate v Frost 219 had not entered into a close examination of the merits of the actions, but had had regard to their outcome. Another relevant case was Lord Advocate v Cooney. In that case the court had taken a global or impressionistic approach towards the litigations which were the subject of the petition. There was no close analysis of the features of the litigations founded upon. Counsel also relied upon Attorney-General v Barker and, in particular, the observations of Lord Bingham of Cornhill (pp 764, 765) on the subject of what was meant by the adjective ‘vexatious’. He also founded upon Attorney-General v Covey and Attorney-General v Matthews (particularly paras 53–57, 69). Finally, before addressing himself to the proceedings founded upon in this petition, counsel drew attention to Lord Advocate v Bell (para 12) in which the court indicated that a limitation imposed to restrict the activities of a vexatious litigant was compatible with the requirements of Art 6 of the European Convention on Human Rights and Fundamental Freedoms, since an order under the 1898 Act did not prevent the respondent from raising actions altogether; it required only that he should obtain leave from a Lord Ordinary before doing so. [10] Counsel for the petitioner went on to draw attention to a number of legal proceedings initiated by the respondent. The first of these was Frost and McNamara v Alexander Stone & Co, an action for reduction of a decree granted in Glasgow Sheriff Court in favour of the defenders against Arakin Ltd. The sheriff court action related to a claim for payment of professional fees. In that action the pursuers relied for their title to sue on a document headed ‘Assignation of Claim’ granted by Arakin Ltd in consideration of a payment of £100 paid by the pursuers. In connection with these proceedings reference was made to an opinion of Lord Bracadale (14 February 2003) and an opinion of the First Division (1 April 2004). Lord Bracadale concluded that the pursuers had failed to make out a prima facie case in the action. The subsequent reclaiming motion was refused. Counsel submitted that it was clear that that action had been vexatious. It represented an attack on a decree in favour of the defenders in the action, which amounted to an attempt to avoid payment. It was legitimate to have regard to the conduct of associated proceedings. In that connection reference was made to the opinion of the First Division (para 3). [11] The second of the proceedings relied upon was McNamara and Frost v McLeish and Peebles. In this action the pursuers sought reparation for alleged loss, injury and damage sustained by them through the ‘malice and faults’ of the ‘employees’ of the first defender. The essential complaint was a lack of impartiality on the part of Sheriff Peebles and malicious selection of him as a sheriff by the First Minister. The action was ultimately abandoned. It contained reckless and completely unfounded averments of malice. This action was plainly vexatious. [12] The third of the proceedings relied upon was Frost and Parkes v Cintec International Ltd in which a number of remedies were sought including payment of sums of £15 million and £10 million. The subject-matter of this litigation had been the subject-matter of other litigation in the High Court of Justice in London. It is evident from the judgment of Laddie J (para 10) that the proceedings in Scotland were raised in breach of an assurance given to the judge. Subsequently, Lord McEwan decided that the Court of Session did not have jurisdiction to entertain this action. That decision was the subject of a reclaiming motion, which was refused. The respondent had abandoned this action, so far as his interest was concerned, on 19 October 2004. It was plain that this action had never had any reasonable grounds. [13] Counsel for the petitioner submitted that the three cases just referred to raised a sharp point. Where an individual raised proceedings on the basis of an 103 220 HM Advocate v Frost 2007 assignation or other mechanism, whereby the assignee could appear as a party litigant, but in reality was acting for another, (1) there was no reasonable ground of action, and (2) such litigation was vexatious. The objectionable nature of what the respondent had done in these and many other actions was described by Lady Smith in her opinion following proof in Tods Murray WS v Arakin Ltd ((2003) paras 56–62). [14] In the first and second of the proceedings relied upon by the petitioner, counsel pointed out that the respondent had relied upon an assignation from Arakin Ltd. The terms of the assignation could be seen from the opinion of Lord Macfadyen in Tods Murray WS v Arakin Ltd ((2000) para 4). In that action a counterclaim for £1 million had been lodged by the defenders. The consequences of that particular assignation were fully described by Lady Smith in her opinion (2003). A further manifestation of the respondent’s use of assignations to pursue claims was to be seen in an action at the instance of Pentland-Clark v John H Macfie WS and Gordon Innes WS, in which an opinion was delivered by Lord Hardie. The true nature of the respondent’s activities had been the subject of evidence given by him in the case of Tods Murray WS v Arakin Ltd, narrated in Lady Smith’s opinion (para 42). The respondent’s activities, as there described, could properly be characterised as vexatious. It was plain that the respondent had sought to evade the rules relating to those who could properly appear for others in the Court of Session. It was not in the public interest that such activity should be permitted to continue. Elaborating his position, counsel pointed out that Laddie J in Cintec International Ltd v Parkes and Frost formed the view that the respondent had acted as advocate for John Humphries Parkes, who had not been well served by him. The restrictions imposed on representation in the Court of Session were conceived in the public interest. The respondent had evaded those restrictions. [15] Counsel went on to draw attention to features of the conduct of the respondent which illustrated the importance of those restrictions. First, the respondent had demonstrated a propensity to make assertions and averments in legal actions, which had no basis in fact. In that connection reference was made to Lady Smith’s opinion (Tods Murray WS v Arakin Ltd, paras 25, 50–53), and to Lord Eassie’s opinion in Unity Trust Bank plc v Frost and Anderson ((2005) paras 37, 49). Reference was also made to the judgment of Laddie J (para 82). Secondly, examination of the very numerous judgments and opinions issued in litigations to which the respondent was a party showed that the respondent had occupied quite inordinate periods of court time by pursuing matters which were irrelevant. In this connection reference was made to the opinion of an Extra Division in Unity Trust Bank plc v Frost and anr (No 2) ((2001) para 13), Tods Murray WS v Arakin Ltd (Lady Smith, paras 25–27, 52) and Laddie J in his judgment, already referred to (paras 80–82). Thirdly, it was evident from opinions and judgments in other cases that the respondent had used court procedure to air grievances that went far beyond the matters properly arising in the cases concerned. In that connection reference was made to the observations in Lady Smith’s opinion in Tods Murray WS v Arakin Ltd (paras 25, 26). Fourthly, the respondent had on a number of occasions made motions in litigations that judges should decline to hear cases, without justification. Examples of that were to be found in Unity Trust Bank plc v Frost and anr (No 2) (2001) and Cintec International Ltd v Parkes and Frost, in the judgment of Laddie J (para 17). Fifthly, as already demonstrated, the respondent had raised legal proceedings in breach of an undertaking given to the High Court in England. Sixthly, the pleadings of the respondent in legal actions left very much to be desired, 104 SC HM Advocate v Frost 221 as appeared from observations in Unity Trust Bank plc v Frost and anr (No 2) ((2001) para 3) and Unity Trust Bank plc v Frost and Anderson ((2005) Lord Eassie, para 7). [16] These were all situations in which, if an individual were a party litigant, the court would accommodate them to some degree. However, the position here was quite different, since the respondent had been engaging in advocacy, without appropriate qualifications or skills. The result was that he had raised actions and brought counterclaims without reasonable grounds and in a vexatious manner. The three particular cases on which counsel founded had been instituted by the respondent, although there was much other material which indicated the nature of the respondent’s activities, particularly the observations of Lady Smith in Tods Murray WS v Arakin Ltd. The three particular cases founded upon had to be looked at against the background described. Counsel also founded upon the behaviour of the respondent in the other litigations to which reference had been made. [17] Section 1 of the 1898 Act was narrowly drafted. It was concerned with a situation where a person had ‘habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings’, not vexatious persons. Nevertheless the requirements of the section were satisfied in the circumstances here. [18] In relation to Cintec International Ltd v Parkes and Frost counsel made certain further points. First, he pointed out that an attempt had been made to appeal the decision of Laddie J. That application was refused by the Court of Appeal. Leave to appeal to the House of Lords was also refused (Lord McEwan, para 5). Secondly, an award of costs had been made against John Humphries Parkes and Martin Frost in the proceedings in the High Court in England, the extent of which was in excess of £200,000. That had led to the sequestration of the respondent and Mr Parkes. However, a petition for recall of the award of sequestration had now been lodged, without apparent justification. Thirdly, counsel again made reference to the raising of proceedings in Scotland against Cintec International Ltd, which was without justification. He explained that he sought to support the petition in relation to a fourth case, Frost and anr v Unity Trust Bank plc, instituted by the respondent, in which reduction of a personal bond and standard security was sought. The history of that litigation was set out in detail in the present petition (record, pp 13–19). That action had been held to have been irrelevant and was dismissed after debate. That decision had been the subject of a reclaiming motion at the hearing of which averments had been added by amendment by the respondent resulting in the allowance of a preliminary proof before answer. The action had been abandoned just before the proof. In due course the issues to be raised in the proof before answer were tested in Unity Trust Bank plc v Frost and Anderson (2003). Lord Eassie concluded that there was no basis in fact for the respondent’s position (paras 28–50). Much time had been expended on these questions. The issue raised by the respondent was not a relevant basis for reduction. That action was ultimately abandoned before proof, as appeared from the report in 1997 SLT 1358. It was worth noting that at a particular stage in that action, the respondent had sought to amend, but his amendment was refused. Thereafter he had presented a petition to the nobile officium to be allowed to amend his pleadings, as appeared from the opinion of Temporary Judge Horsburgh (2 February 1996) (p 5). In the whole circumstances the prayer of the petition should be granted. 105 222 HM Advocate v Frost 2007

Submissions of the respondent

[19] The respondent addressed us at length. At times his submissions were coherent, at others they were rambling and incomprehensible to anyone not possessing an encyclopaedic knowledge of his own affairs. He persistently addressed us at length upon matters which were plainly irrelevant to the issues arising in this petition. Further, from time to time he sought to contend that decisions made and opinions expressed by other judges in other courts in other litigations were ill- founded. In these circumstances, it is virtually impossible to devise a coherent summary of what he had to say. Nevertheless, certain comprehensible points appeared to emerge. [20] The respondent contended that the petitioner’s basis for the present petition was unfounded in fact. Furthermore, the petitioner had ‘cherry picked’ certain cases, for his own purposes. He had omitted to mention many of the processes in which the respondent had been involved and opinions pronounced in them, which radically altered the perspective of the respondent as a litigator. In relation to Cintec International Ltd v Parkes and Frost the respondent said that he had been accused of breaching an undertaking to the English court. He accepted that he did state what was narrated by Laddie J, to the effect that he would not raise proceedings. However, there had developed a ‘race’ to get into the relevant court, which accounted for the raising of the Scottish proceedings. Furthermore, it had to be borne in mind that legal proceedings raised by the respondent had required the leave of a Lord Ordinary in terms of RC 4.2(6). In the case of the proceedings against Cintec International Ltd, a Lord Ordinary had granted leave to proceed. The respondent went on to describe in minute detail the background to the raising of those proceedings. In doing so he observed that, in the last 25 years, he had been involved in more than 500 litigations, 10 per cent of which had been in Scotland. The remainder had been raised in England, in the European Union, in the United States of America and in Canada. He claimed that in well over 90 per cent of these litigations he had been represented by solicitors and counsel. [21] After addressing us at length on the subject of the litigations involving Cintec International Ltd, the respondent turned to the case of McNamara and Frost v McLeish and Peebles. He explained in great detail the circumstances in which that action had come to be raised. However, the respondent did not attempt to persuade us that the raising of the action against the First Minister and Sheriff Peebles could be said to have been upon reasonable grounds. Thereafter he reverted to further discussion of the Cintec International Ltd litigations. Thereafter he moved on to consider in great detail the circumstances in which the Unity Trust Bank plc litigations occurred. Towards the end of the three-day diet originally fixed for the hearing of this petition, the respondent showed signs of becoming ill. Accord- ingly the hearing was adjourned since, in any event, it would not have been completed in the time made available for it. At the close of the proceedings on that occasion, counsel for the petitioner indicated that he would be asking the court to grant the prayer of the petition on a narrow basis, that of the use of assignations in several of the actions founded upon. [22] At a further diet, counsel for the petitioner moved for leave to amend in terms of his minute of amendment and answers for the respondent. The respondent did not oppose that motion. The purpose of the minute of amendment was said to be to bring the pleadings up to date having regard to the passage of more than a year since the first diet of hearing. 106 SC HM Advocate v Frost 223

[23] Following allowance of the amendment, the respondent once again addressed the court. He contended that the use of assignations could not be seen as vexatious under the terms of sec 1 of the 1898 Act. If a right to pursue an action were acquired by assignation, there was nothing vexatious about the assignee pursuing the claim, since, by virtue of the assignation, it had become his. Furthermore, the respondent stated that he had never perceived himself as representing others in cases where assignations had been taken. He saw himself as representing his own interest whether as an individual, or in a partnership, or as a member of a company. In circumstances where the respondent had sued or been sued along with another, such as Andrew McNamara, or John Humphries Parkes, in such situations, the party to the action was a partnership, taking the form of a joint venture. However, the present proceedings had been directed against the respondent personally. In these circumstances it was not open to the court to take into account such cases. [24] The respondent then proceeded to address the court in relation to the details of a number of cases on which counsel for the petitioner had not founded. The purpose of that exercise was not made clear to us. The respondent went on to say that his purpose in the present petition was to ask the court to allow a proof. He appeared to suggest that the decision making of this court would be assisted by the hearing of evidence. He did not explain exactly what the scope of any proof might be. [25] He then went on to criticise a number of individuals; a number of members of the legal profession whom he had encountered could not be described as honest. In connection with a number of problems related to such persons the respondent had been advised to go to the police. He stated that in fact he had been in contact with the Metropolitan Police and had been interviewed in connection with the ‘cash for peerages’ inquiry, which he appeared to consider relevant to the task that we had to perform. Unity Trust Bank plc had loaned £4 million to the Labour Party. The respondent proceeded next to criticise the circumstances in which he and his property had been ejected from Edenside House, Kelso, at the instance of Unity Trust Bank plc. He also considered in detail the circumstances of the administration of the individual voluntary arrangement into which he had entered with his creditors. The respondent complained that the Scottish courts had not given proper recognition to that arrangement. [26] The respondent then ranged over a large number of matters which he conceived had relevance to the present proceedings. He drew attention to actions in which he had been involved which, he submitted, by no stretch of the imagination, could be described as vexatious litigations. He drew attention to his sequestration. It was his contention that, standing the individual voluntary arrangement, the sequestration should not have been awarded. The respondent had been a frequent litigator because he was not someone who was prepared to give up the fight in the face of a perceived wrong. There were many features of the Scottish legal system of which the respondent disapproved. He criticised officials of the Court of Session in respect of the issue of an interlocutor earlier this year, delay in which he contended had prevented him from appealing to the House of Lords. The interlocutor had been found very much later than the date on which the opinion to which it related had been issued. The respondent reverted to discussion of the conduct of Unity Trust Bank plc and his expulsion from Edenside House, Kelso. The manner in which that operation had been conducted was most unsatisfactory. Once again the respondent engaged in formulation of a series of criticisms of Unity Trust Bank plc. That organisation had been responsible for a substantial part of the respondent’s life 107 224 HM Advocate v Frost 2007 having been taken up in anxious litigations. He considered that he was the victim in all this, rather than being a vexatious litigant.

Decision

[27] The present petition is brought under sec 1 of the 1898 Act which provides:

‘It shall be lawful for the Lord Advocate to apply to either Division of the Inner House of the Court of Session for an order under this Act, and if he satisfies the Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court, and whether against the same person or against different persons, the Court may order that no legal proceedings shall be instituted by that person in the Court of Session or any other court unless he obtains the leave of a judge sitting in the Outer House on the Bills in the Court of Session, having satisfied the judge that such legal proceeding is not vexatious, and that there is prima facie ground for such proceeding. A copy of such order shall be published in the Edinburgh Gazette.’

Before coming to consider the factual basis of the petition, it is appropriate for us to examine the terms of the legislation with a view to seeing what material may or may not be relevant to an application made under it. The section speaks of any person who ‘has habitually and persistently’ instituted the specified proceedings. It appears to us that these words imply that, to constitute a proper basis for an application, there must at least be more than one such proceeding. However, we do not consider that it is possible to specify some minimum number of proceedings which is required before an application can succeed. In this connection, something will depend upon the nature of the proceedings and the circumstances in which they are brought. [28] The person who may be the subject of an order under sec 1 of the 1898 Act is a person who has ‘instituted’ proceedings of the kind described. It might be thought that this word requires that the person who is the subject of the application has habitually and persistently been a pursuer in proceedings of the kind described. We consider, however, that that interpretation of the section is unduly narrow. We think that a person may be said to have ‘instituted’ proceedings in other circumstances also. Under RC 25.1(1) provision is made authorising a defender in any action other than a family action to lodge a counterclaim against a pursuer in the circumstances there defined. These circumstances are:

‘(a) where the counterclaim might have been made in a separate action in which it would not have been necessary to call as a defender any person other than the pursuer; and (b) in respect of any matter– (i) forming part, or arising out of the grounds, of the action by the pursuer; (ii) the decision of which is necessary for the determination of the question in controversy between the parties; or (iii) which, if the pursuer had been a person not otherwise subject to the jurisdiction of the Court, might have been the subject- matter of an action against that pursuer in which jurisdiction would have arisen by reconvention.’ 108 SC HM Advocate v Frost 225

Having regard to the terms of this Rule of Court we consider that the lodging of a counterclaim falling within the terms of the rule must be seen as equivalent to the raising of an action and hence the institution of the proceedings concerned. Thus we conclude that a person may be said to have ‘instituted vexatious legal proceedings’ if, in a counterclaim, that person has commenced proceedings having the quality desiderated by the section. We are confirmed in this view by consideration of what was said in Attorney-General v Jones. That case was concerned with an application by the Attorney-General under sec 42(1) of the Supreme Court Act 1981, which speaks of any person who has:

‘habitually and persistently and without any reasonable ground– (a) instituted vexatious civil proceedings, whether in the High Court or any inferior Court’.

In that case it was held by the Court of Appeal that a counterclaiming defendant instituted proceedings in relation to the counterclaim in exactly the same way as a plaintiff instituted proceedings in relation to a claim, as appears from what was said by Lord Donaldson of Lymington MR (p 861). It appears to us that the words used in sec 42(1) are so similar to the words used in sec 1 of the 1898 Act and that the provisions of RC 25.1(1) are so similar to the terms of the relevant English rule regarding counterclaims, namely Ord 15, r 2, that what was said in that case in this respect applies with equal force to the situation in Scotland. [29] We have also reached the conclusion that the enrolling of a reclaiming motion in an action to which a person is a party, whether as a pursuer or defender, may properly be seen as the institution of proceedings susceptible of control under sec 1 of the 1898 Act. The enrolling of a reclaiming motion is for several purposes seen as a separate proceeding; furthermore, in Lord Advocate v Cooney, the court, in reaching its conclusion that an order should be made under sec 1 of the 1898 Act, took into account the lodging of appeals against the dismissal of certain actions after the respondent in that petition had failed to lodge caution. [30] Turning to the words ‘vexatious legal proceedings’ and ‘without any reasonable ground for instituting such proceedings’ in sec 1 of the 1898 Act, it is our view that there is a close connection between the concepts expressed in these expressions. It appears to us that legal proceedings may be properly seen as ‘vexatious’ if they are devoid of reasonable grounds for their institution. However, it does appear to us possible that legal proceedings might properly be seen as ‘vexatious’, even if there were ‘reasonable grounds for instituting such proceedings’, although proceedings instituted in those circumstances would not be a sufficient basis for an application under sec 1. We are confirmed in this approach to these words by what was said by Lord Bingham of Cornhill CJ in Attorney-General v Barker, another application under sec 42 of the Supreme Court Act 1981. Lord Bingham said (p 764):

‘ ‘‘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. Those conditions are in my view met in this case.’ 109 226 HM Advocate v Frost 2007

[31] As regards the words ‘without any reasonable ground’, it is our view that this court, in adjudicating upon an application such as this one, may conclude that certain proceedings had no reasonable ground simply upon the basis that those proceedings failed, or were abandoned before determination. In a case such as this, it would plainly be impracticable to re-examine the merits, or lack of them, of all of the proceedings founded upon by the petitioner. We therefore feel able to proceed upon the basis of determinations made by other judges in the proceedings founded upon. That was the course followed by the court in Lord Advocate v Henderson and Lord Advocate v Cooney. [32] It will be noted that the basis for an application under sec 1 of the 1898 Act is said to be proceedings ‘whether in the Court of Session or in any inferior court’. We consider that these words imply that the proceedings which may be the basis for an application before this court must be proceedings within Scotland. We do not think that those words are consistent with any other view. Accordingly, we do not consider that the proceedings before Laddie J in Cintec International Ltd v Parkes and Frost, which were the subject of extensive discussion before us, can be directly relevant to the determination of this application. [33] Finally, in this connection, it appears to us that the words of sec 1 of the 1898 Act do not require the court to make an order even if it concludes that the preconditions for such an order have been established. What the section does is to confer upon the court a discretion to make an order if, in all the circumstances, it considers that that course is appropriate. [34] It will be evident from our narrative of the discussion before us that it ranged far and wide, into the highways, but also the by-ways of the respondent’s litigations. Happily we do not find it necessary to take into account all of the various actions to which reference was made, since counsel for the petitioner came to focus attention particularly on a limited number of actions. The first of these was that of Frost and McNamara v Alexander Stone & Co, the subject of averment in the petition. In this action the respondent and Mr McNamara raised proceedings seeking reduction of a sheriff court decree granted at Glasgow Sheriff Court in favour of Alexander Stone & Co against Arakin Ltd. The involvement of Mr McNamara and the respondent in this action depended upon an assignation by Arakin Ltd of claims against the defenders. The history of the proceedings is set out in the averments mentioned and cannot be the subject of dispute. The Lord Ordinary concluded that the pursuers had failed to make out a prima facie case. The respondent and Mr McNamara reclaimed, but the court refused the reclaiming motion. It should be observed that during the course of this litigation the respondent withdrew from the proceedings by granting Mr McNamara an assignation of his right to pursue the action. [35] The second litigation on which particular attention was focused was McNamara and Frost v McLeish and Peebles. The averments made by the pursuers can only be described as bizarre, outrageous and irrelevant. They contain allegations of malice against both defenders without any comprehensible basis upon which malice could be inferred. Furthermore, the convening of the First Minister, who is described as the ‘employer’ of the second defender, who is a sheriff, is plainly completely misconceived. This action was, in due course, abandoned. [36] The third action which was the focus of particular attention was Frost and Parkes v Cintec International Ltd. In it, it is averred that the respondent is a ‘friend and sleeping business partner of the second pursuer’. The defenders entered appearance for the sole purpose of taking a plea of no jurisdiction. The case was appointed to the procedure roll on the defenders’ plea of no jurisdiction. In due course the 110 SC HM Advocate v Frost 227

Lord Ordinary sustained the plea of no jurisdiction. A subsequent reclaiming motion was refused. It is to be noted that this action was raised admittedly in breach of an undertaking given by the respondent to Laddie J in the proceedings involving Cintec International Ltd in the High Court in England. No doubt, appreciating the unwisdom involved in these proceedings, the respondent abandoned them, so far as his interest was concerned, on 19 October 2004. [37] Attention was also focused particularly on the proceedings in Frost and anr v Unity Trust Bank plc. This action was dismissed after debate, as appears from the opinion of the temporary judge on the basis that it was irrelevant. There was a reclaiming motion following upon that decision, during the course of which amendments were made on behalf of the pursuers, with the result that a preliminary proof before answer was allowed. The action was subsequently abandoned just before proof, although that was not the end of the story, as appears from the averments made in relation to notes of objections to the auditor’s report. [38] On the basis of these particular proceedings, which are just some of those which were the subject of discussion before us, we are quite satisfied that the requirements for an order under sec 1 of the 1898 Act can be said to exist. Nevertheless, there is more. We refer, in particular, to Tods Murray WS v Arakin Ltd. Arakin Ltd lodged a counterclaim in this action seeking payment of £1 million in respect of loss and damage said to have been suffered by the defenders through the pursuers’ breach of contract or negligence. In 2000, the respondent and Andrew McNamara enrolled a motion seeking to have themselves sisted as assignees to the counterclaim in room and place of Arakin Ltd. On 9 May 2000 the Lord Ordinary refused that motion as incompetent. However the respondent and Mr McNamara reclaimed the interlocutors of 9 May 2000, but by interlocutor of 10 April 2001 the reclaiming motion was refused. However, on 29 May 2001 the respondent and Mr McNamara were indeed sisted as parties to both the action and the counterclaim in room and place of Arakin Ltd. Thereafter they appeared in the action as party litigants. The complicated sequence of events that followed in this action is described in the record (p 21 et seq). It is sufficient to note that a proof was allowed into the validity of allegations by the respondent and Mr McNamara to the effect that the pursuers and their agents had tampered with the process. The evidence in the proof lasted for 15 days. The respondent and Mr McNamara called 14 witnesses, including the Dean of the Faculty of Advocates. The Lord Ordinary subsequently noted in her opinion that the Dean of Faculty ‘had no relevant evidence to give and it was difficult to see why he had been called as a witness.’ In her opinion the Lord Ordinary (paras 50–62) makes certain general observations regarding the conduct of this proof by the respondent and Mr McNamara, having held that none of the allegations made by the defenders, to the effect that the process had been tampered with or doctored were, on the evidence, well founded. The Lord Ordinary observed (para 51):

‘It was also clear, in my view, that Mr Frost and Mr McNamara were apt to make representations that were not always correct and which they knew or ought to have realised were wrong.’

She stated (para 52):

‘The proof took an inordinate length of time due to the fact that both defenders persistently resorted to irrelevant lines of enquiry and were disorganised in their presentation’. 111 228 HM Advocate v Frost 2007

She said (para 53):

‘In all the circumstances I have reached the view that Mr Hodge was correct to characterise the defenders’ approach as reckless and I agree that they had no reasonable grounds for their asserted belief in the truth of the allegations that they made.’

The Lord Ordinary (para 56) gave her impression of the position of the respondent in relation to that litigation:

‘Mr Frost appeared, as he repeatedly stated, as a party litigant, having, together with Mr McNamara, taken an assignation of Arakin’s interests. He was apt to pray in aid that he was a party litigant whenever he was in the position of having to seek the court’s indulgence for failure on his part to follow proper procedures, despite acknowledging that he had actually appeared in court on very many occasions. I have, however, reached the view that his use of the assignation procedure is employed by him as a device to enable him to represent the interests of others. I formed the clear impression that what, in reality, he was seeking to do in this litigation was to represent Mr McNamara’s interests. Such an approach would fit with the picture that emerged from his own evidence of persons regularly contacting him to see if he would take up their grievances and of him endeavouring to help them. In short, he runs a business in which he seeks to act for persons who have a grievance but no lawyer.’

Finally, the Lord Ordinary continued (para 62):

‘Litigants cannot always secure legal representation whether for financial or other reasons and it is fundamental to any civilised society that they should, nonetheless, have access to justice. That basic right was clearly in the minds of those who were responsible for the establishment of this Court and it is a right which has been afforded to litigants throughout its life since then. It has, however, in my opinion, to be questioned whether it was ever contemplated that the right should be extended to those who choose to acquire from another person, an interest in a litigation in which they do not need to become involved at all. Further, the questioning must, in my opinion, be even stronger in a case where the acquisition of the right is employed as a cloak or veil so as to conceal the reality of the arrangements that lie behind it, particularly where that reality is, as I consider it in this case to be, that the ‘‘party’’ is, in truth, acting as procurator for another.’

We consider that these observations are particularly apt in the context of this petition in which certain of the cases founded upon by the petitioner were cases in which the respondent had become involved by virtue of an assignation in his favour of the rights of another. These views expressed by the Lord Ordinary in that case were echoed by Laddie J in his judgment in Cintec International Ltd v Parkes and Frost (para 82). [39] At this stage it is right that we should deal with certain issues raised by the respondent in response to the present petition. First, it was contended by him that this petition was directed against him as an individual, not against a partnership in which he was a partner. He argued that, in cases where there had been an assignation to him along with another, the reality of the situation was that there had been created a partnership in the form of a joint venture. Accordingly such litigations as that could not form a relevant basis for the present petition. We reject that argument. If it were truly the case that, in certain litigations where assignations had been taken by the respondent along with another, there existed a partnership, 112 SC HM Advocate v Frost 229 by virtue of the assignation and the agreement of the assignees to form a partnership, reference should have been made in those litigations to that partnership. It should have been designated as a party to the action concerned. That has not been done. Furthermore, it would, of course, have been a consequence of a situation in which a partnership, as a separate legal persona, was a party to an action that the respondent, as an unqualified person not having rights of audience in this court to represent others, would have been unable to represent the partnership. No such situation was recognised. [40] Secondly, at certain stages of his submissions, the respondent contended that there should be a proof in this petition. It was never made clear to us by the respondent why he considered that a proof was necessary. However, we suppose that he thought that course appropriate because he challenged what other judges in the litigations founded upon by the petitioner had said concerning those litigations. If that were the basis for his argument in favour of a proof, it is one which we reject. In both Lord Advocate v Henderson and Lord Advocate v Cooney the court was prepared to proceed upon the basis of decisions reached by other judges and opinions expressed by other judges in the litigations which were the basis of those applications. We see no reason why we should do otherwise. It would be quite contrary to principle to allow the respondent in this petition to open up issues which have been litigated before other courts and decided finally against his contentions. [41] Thirdly, in the course of his submissions to us, the respondent maintained that he had been a party to a number of litigations in which to a greater or lesser extent he had succeeded. He appeared to think that, for that reason, the present petition should be refused. We consider that there is no merit in that contention. The fact that, in certain cases, the respondent may have succeeded in obtaining a decision in his favour is irrelevant to the issue which we have to decide in this case. The question for us is whether the matters set forth in sec 1 of the 1898 Act, as a necessary basis for an order under that section, have been established. If they have, it matters not what may or may not have occurred in other litigations. [42] Finally, the respondent attributed importance to the fact that in those litigations which had been commenced by him as a party litigant it had been necessary for him to obtain leave from a Lord Ordinary to proceed without the requisite signature on the initiating summons, in terms of RC 4.2(5). While it has been necessary for the respondent to obtain such leave in certain cases and while he has done that, that does not, in our opinion, necessarily lead to the conclusion that the proceedings so initiated were not vexatious and without reasonable grounds. The granting of leave in terms of the Rule of Court may signify no more than that the Lord Ordinary granting it has been satisfied that the summons concerned was in proper form. In the nature of things, a Lord Ordinary granting such leave may not be able to form any conclusion as to whether there exist reasonable grounds for instituting the proceedings concerned. [43] Although no oral argument was addressed to us on the matter, it is our responsibility to consider whether the making of an order under sec 1 of the 1898 Act would be incompatible with the respondent’s rights under Art 6 of the Convention on Human Rights and Fundamental Freedoms. We are in no doubt that there would be no such incompatibility. It is well recognised that the kind of restraint which is available in terms of sec 1 of the 1898 Act is in fact compatible with Art 6. In that connection we refer to what was said in Lord Advocate v Bell (para 12) by Lord Coulsfield, delivering the opinion of the court: 113 230 HM Advocate v Frost 2007

‘As regards compatibility with the European Convention, counsel for the petitioner referred to H v United Kingdom [(1985) 45 DR 281], a decision of the Commission, which considers previous court decisions and holds that a limitation imposed to restrict the activities of a vexatious litigant is compatible with the requirements of Art 6. An order under the 1898 Act does not prevent the respondent from raising actions altogether: it only requires that he should obtain leave from a Lord Ordinary before doing so.’

[44] In considering the exercise of our discretion, we think it right to bear in mind what was said by Staughton LJ in Attorney-General v Jones (p 865): ‘The power to restrain someone from commencing or continuing legal proceedings is no doubt a drastic restriction of his civil rights, and is still a restriction if it is subject to the grant of leave by a High Court judge. But there must come a time when it is right to exercise that power, for at least two reasons. First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; secondly, the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances, and should not be squandered on those who do not.’

Similar views were expressed in Bhamjee v Forsdick and ors by Lord Phillips of Worth Matravers. [45] In all the circumstances, having regard to the conduct of the respondent, amply demonstrated in the litigations which form the basis of the present application, we are wholly satisfied that the appropriate course is for us to exercise our discretion by making the order sought. In reaching this conclusion we have been particularly influenced by the fact that the respondent has made a practice of taking assignations from other persons of their interests in claims or litigations, upon that basis then proceeding to have himself sisted as a party to those litigations, and then practising his own particular brand of advocacy. That has involved the making of reckless and unfounded allegations, the wholly unnecessary prolongation of legal proceedings by the exploration of the legally irrelevant, the subjection of his opponents to the trouble and expense of countering his allegations, with little hope of any remedy becoming available to them, in practice, through an award of expenses, on account of the fact that the respondent has been sequestrated, and the diversion of scarce public resources in the court system to the investigation of groundless claims. Accordingly we shall grant the prayer of the petition.

The Court granted the prayer of the petition.

Solicitor to the Scottish Executive – Party 114 598 2009

LORD ADVOCATE v MCNAMARA

No 48 Extra Division 04 June 2009 [2009] CSIH 45 Lord Advocate, Petitioner—McBrearty Andrew McNamara, Respondent—Party Process – Vexatious litigant order – Whether appropriate to grant in the circumstances – Vexatious Actions (Scotland) Act 1898 (61 & 62 Vict cap 35), sec 1 Words and phrases – ’’Vexatious legal proceedings’’ – ’’Without any reasonable ground’’ – Vexatious Actions (Scotland) Act 1898 (61 & 62 Vict cap 35), sec 1 Section 1 of the Vexatious Actions (Scotland) Act 1898 (61 & 62 Vict cap 35) provides that the Lord Advocate may apply to the Inner House for an order, and if he satisfies the court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court and whether against the same or different persons, the court may order that no legal proceedings shall be instituted by the respondent without leave of an Outer House judge. The Lord Advocate sought an order under sec 1 of the 1898 Act, on the basis, inter alia, that the respondent had habitually and persistently instituted vexatious legal proceedings without any reasonable grounds; and in so far as the merits of claims, counterclaims and appeals had been adjudicated upon they had been unsuccessful or abandoned by the respondent. The actions involved claims made against firms of solicitors, a sheriff who had refused to decline hearing a matter before him, and the First Minister. In the first action relied upon, a proof had been held by the Lord Ordinary into allegations made by the respondent and another of knowing and wilful deceit on the court. The Lord Ordinary concluded that none of the allegations were well founded and that they had been based on unfounded assumption and suspicion. Both the respondent and the other individual ‘‘were apt to make representations that were not always correct and which they knew or ought to have realised were wrong’’. In the second action relied on by the petitioner, the respondent and the same third party had raised an action in the sheriff court against a firm of solicitors based on alleged breach of contract and professional negligence. The action was dismissed with the concurrence of the third party and the dismissal was not opposed by counsel on behalf of the respondent. The decree of dismissal was not reclaimed against. In the third action relied upon by the petitioner, the respondent and the third party had raised an action against the sheriff who had refused to decline hearing a matter before him and the First Minister. The action had been abandoned by the third party and thereafter the respondent. The respondent accepted that allegations of malice and dishonesty made against the sheriff in that action were ‘‘a load of nonsense’’. In the fourth action relied upon, the respondent had sought to be sisted as a party to sheriff court proceedings for the purpose of making a counterclaim after a decision had been reached and an appeal against that decision abandoned. The respondent’s application had been refused as incompetent and an appeal by him to the sheriff principal unsuccessful. The respondent after sundry procedure thereafter applied along with the third party for reduction of the sheriff’s decree, suspension and interdict. The respondent ultimately, following sundry procedure, also abandoned that action. Counsel for the petitioner submitted that it was appropriate for the order sought to be granted in the circumstances and having particular regard to the allegations made against the sheriff and the First Minister, the respondent’s conduct of proceedings causing worry, expense and inconvenience to parties against whom the respondent instituted proceedings and the effect of these proceedings on judicial time and resources. 115 SC Lord Advocate v McNamara 599

The respondent submitted that he had met all awards of expenses made against him and would continue to do so, that he regretted his reliance on the third party in the proceedings in question and that there was no basis for an argument of necessity in the public interest for the order sought to be granted. Held that the respondent had been willing to persist in hopeless actions well beyond the point when the time had come to stop, thus wasting judicial time and resources, as well as that of other parties; made reckless allegations of extreme gravity which constituted an abuse of process as they were without any reasonable basis; used court processes for purposes unconnected with the case in question and collateral purposes which constituted a further abuse of process; repeatedly pursued irrelevant matters in the course of presentation of his position in a variety of courts; and targeted lawyers and judges whom he encountered in a purely professional or judicial capacity in connection with court proceedings, whereas such individuals should be able to perform their functions without being harassed by groundless litigation; and that in all the circumstances the objectives of the 1898 Act were met (paras 66–74); and order granted. Her Majesty’s Advocate petitioned the Inner House of the Court of Session for an order under the Vexatious Actions (Scotland) Act 1898 against Andrew McNamara. Cases referred to: Advocate General v Macdonald sub nom McDonald v Minister of Defence; Secretary of State for Defence v MacDonald; MacDonald v Advocate General for Scotland 2003 SC (HL) 35; 2003 SLT 1158; 2003 SCLR 814; [2004] 1 All ER 339 Advocate (HM) v Bell 2002 SLT 527 Advocate (HM) v Frost [2006] CSIH 56; 2007 SC 215; 2007 SLT 345 Advocate (Lord) v Cooney 1984 SLT 434 Advocate (Lord) v Henderson 1983 SLT 518 Advocate (Lord) v Rizza 1962 SLT (Notes) 8 Alexander Stone & Co v Arakin Ltd Sh Ct, 17 July 2001, unreported Attorney-General v Barker [2000] 1 FLR 759 Attorney-General v Collier [2001] NZAR 137 Attorney-General v Covey [2001] EWCA Civ 254 Attorney-General v Hill [1993] 7 PRNZ 20 Attorney-General v Jones [1990] 1 WLR 859; [1990] 2 All ER 636; [1990] COD 373 Attorney-General v Vernazza sub nom Re Vernazza (Nos 1 and 3) [1960] AC 965; [1960] 3 WLR 466; [1960] 3 All ER 97 Attorney-General v Wentworth (1988) 14 NSWLR 481 Bhamjee v Forsdick [2003] EWCA Civ 1113; [2004] 1 WLR 88; [2003] CP Rep 67; [2003] BPIR 1252 Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd; Gregg v Raytheon [1981] AC 909; [1981] 2 WLR 141; [1981] 2 All ER 289 Clarke v Fennoscandia Ltd [2007] UKHL 56; 2008 SC (HL) 122; 2008 SLT 122; 2008 SCLR 142 Clarke v Fennoscandia Ltd (No 3) 2005 SLT 511; 2005 SCLR 322 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 Ebert v Venvil [2000] Ch 484 Foy v Foy (No 2) (1980) 102 DLR (3d) 342; (1979) 26 OR (2d) 220 Frost and McNamara v Alexander Stone & Co sub nom Frost v Alexander Stone & Co 2004 GWD 12-256 and 2003 SCLR 472; 2003 GWD 10-272 Garratt (Henry J) & Co v Ewing [1991] 1 WLR 1356; [1991] 4 All ER 891; 135 SJLB 171 HvUK(1985) 45 DR 281 Hood Barrs v Cathcart (No 2) [1894] 3 Ch 376 Hood Barrs v Heriot [1897] AC 177 Hunter’s Hill Municipal Council v Pedler (1976) 1 NSWLR 478 Jones v Skyring (1992) 109 ALR 303; 66 ALJR 810 Langton (Re) [1966] 1 WLR 1575; [1966] 3 All ER 576; 110 SJ 832 McCarroll v McKinstery sub nom McCarroll v Blackwood 1926 SC (HL) 1; 1925 SLT 641 McNamara v Levy & McRae [2007] CSOH 95 McNamara and Frost v McLeish and Peebles Sh Ct, unreported 116 600 Lord Advocate v McNamara 2009

Metropolitan Bank Ltd v Pooley (1885) 10 App Case 210 Moore v Scottish Daily Record and Sunday Mail Ltd [2008] CSIH 66; 2009 SC 178; 2009 SLT 27 R v Montila [2004] UKHL 50; [2004] 1 WLR 3141; [2005] 1 All ER 113; [2005] Cr App R 26 Robinson (John) & Co Ltd v R [1921] 3 KB 183; 7 Ll L Rep 163 Tods Murray WS v Arakin Ltd 2000 SLT 758; 2000 SCLR 804 and 2001 SC 840; 2000 SLT 1193 Vernazza (Re) [1960] 1 QB 197; [1960] 2 WLR 135; [1960] 1 All ER 183; 104 SJ 51 Vexatious Actions Act 1896 (Re); Re Boaler [1915] 1 KB 21; 83 LJ (KB) 1629; 24 Cox CC 335 Textbooks etc referred to: Taggart, M, ‘Alexander Chaffers and the Genesis of the Vexatious Actions Act 1896’ [2004] CLJ 656, p 679 The cause called before an Extra Division, comprising Lord Reed, Lord Hardie, and Lord Marnoch, for a hearing on the summar roll, on 17 and 18 February 2009. At advising on 4 June 2009, the opinion of the Court was delivered by Lord Reed—

Opinion of the Court—

Introduction [1] This is an application by the Lord Advocate for an order to be made in respect of the respondent under sec 1 of the Vexatious Actions (Scotland) Act 1898 (61 & 62 Vict cap 35) (‘the 1898 Act’), as amended. The application is based on the respondent’s involvement in four legal actions, as explained below. It is opposed by the respondent.

Relevant legislation [2] Before considering the material relied on in support of the application, it is convenient to consider the relevant legislation with a view to deciding how such an application should be approached. [3] Section 1 of the 1898 Act provides: ‘It shall be lawful for the Lord Advocate to apply to either Division of the Inner House of the Court of Session for an order under this Act, and if he satisfies the Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court, and whether against the same person or against different persons, the Court may order that no legal proceedings shall be instituted by that person in the Court of Session or any other court unless he obtains the leave of the Lord Ordinary on the Bills in the Court of Session, having satisfied the Lord Ordinary that such legal proceeding is not vexatious, and that there is prima facie ground for such proceeding. A copy of such order shall be published in the Edinburgh Gazette.’ In accordance with sec 3(1) of the Administration of Justice (Scotland) Act 1933 (23 & 24 Geo 5 cap 41), the reference to the Lord Ordinary on the bills is to be construed as a reference to a judge sitting in the Outer House. [4] There are few reported decisions under the 1898 Act, and in only one, HM Advocate v Frost, was the legislation considered in any detail. That was the only relevant decision to which we were referred in the course of the parties’ submissions. There are however a larger number of English cases, some of which are cited in the opinion in Frost, and cases from elsewhere in the Commonwealth, 117 SC Lord Advocate v McNamara 601 which have been decided under similar legislation and which throw additional light on its proper interpretation. Although none of the English or Commonwealth case law is critical to our decision in the present case, we shall make reference to it, partly in order to draw attention to the existence of a substantial body of law in which many of the issues arising under the 1898 Act have already been the subject of judicial consideration. [5] The 1898 Act was modelled upon the Vexatious Actions Act 1896 (59 & 60 Vict cap 51), which applied in England and Wales and was, mutatis mutandis, in almost identical terms. Equivalent legislation was also introduced in other Commonwealth jurisdictions, including Canada, Australia and New Zealand. The circumstances which led to the enactment of the 1896 Act were explained by the High Court of Australia in Commonwealth Trading Bank v Inglis (p 316): ‘In moving the second reading of the bill in the House of Lords, Lord Halsbury referred in detail to numerous actions that had been brought by one person against a number of other persons, including judges and other persons holding public office. It was said that ‘‘the time had arrived when some sort of stop should be put to such proceedings’’. The Bill provided that an application for an order that a person should not issue process without leave should be made by the Attorney-General. The person to whom Lord Halsbury referred had brought some forty-eight actions, the details of which were given. His name was Alexander Chaffers. An application against him was the first case brought under the 1896 Act. It is reported as Ex parte the Attorney-General; Re Alexander Chaffers (1897) 76 LT 351; 45 WR 365’.

(See also Re Vexatious Actions Act, 1896; Re Boaler (‘Re Boaler’), per Scrutton J, pp 39, 40.) [6] The 1896 Act was enacted against the background of the court’s inherent jurisdiction to prevent abuses of process, as Lord Woolf MR explained in Ebert v Venvil (pp 495, 496). The language used in the 1896 Act reflects that background: it is derived from judicial dicta relating to the court’s inherent jurisdiction, such as that of Lord Blackburn in Metropolitan Bank Ltd v Pooley (pp 220, 221): ‘[F]rom early times . . . the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing’.

[7] In Scotland, also, the court possesses an inherent power to prevent abuses of process (see, eg Moore v Scottish Daily Record and Sunday Mail Ltd, per Lord Justice- Clerk Gill, paras 13, 14). It has been said that an action might be an abuse of process ‘if it wastefully occupied the time and resources of the court in a claim that was obviously without merit’ (Clarke v Fennoscandia Ltd (No 3), per Lord Justice-Clerk Gill, para 17); that the court might ‘prevent proliferation of litigation in relation to essentially the same dispute and the same issues’ (Clarke v Fennoscandia Ltd (No 3), per Lord Clarke, para 40, with whose opinion Lord Justice-Clerk Gill and Lord Menzies expressed agreement); and that an action might be dismissed as incompetent if it was not brought for a legitimate purpose (Clarke v Fennoscandia Ltd, per Lord Rodger of Earlsferry, para 35). As we shall explain, these are all descrip- tions of proceedings which might be characterised, in the language of the 1896 and 1898 Acts, as vexatious. [8] The Scottish authorities establishing and illustrating the court’s inherent power to protect itself from an abuse of its process are concerned with proceedings which were pending before the court, and with the taking of steps in those proceedings so as to prevent the court’s process from being abused. Whether the courts in Scotland have an inherent power to prevent the commencement of 118 602 Lord Advocate v McNamara 2009 further proceedings by a particular person, except by leave of the court, is less clear (and is a question on which different views have been taken, in relation to the powers of the English and Australian courts, in Ebert v Venvil and Commonwealth Trading Bank v Inglis respectively). The purpose of the 1896 Act appears to have been to confer upon the High Court a statutory basis for exercising such a power (as Prof Michael Taggart explains in his article, ‘Alexander Chaffers and the Genesis of the Vexatious Actions Act 1896’, p 679). Similarly, in relation to Scotland, the significance of the 1898 Act was that it conferred upon the court a statutory power to make such an order, on the application of the Lord Advocate. It thus enabled the court to anticipate potential future abuses of its process, without having to wait until an abuse occurred in proceedings which were pending before it: the court could make an order of a precautionary nature under the Act where a person had a history of having habitually and persistently abused its process. [9] The 1898 Act is thus a measure of a procedural character, which supplements the court’s inherent power to prevent abuses of its process. The effect of an order under the Act is correspondingly limited. It does not deprive the person in question of his right of access to the court, but requires him, before he again exercises that right, to satisfy the court that the proceedings which he proposes to institute will not be an abuse of its process. [10] We note that the character of the equivalent legislation in other jurisdictions has been similarly analysed. In Jones v Skyring, for example, an equivalent Australian provision was described by Toohey J in the High Court of Australia as being ‘concerned with practice and procedure, reinforcing the power of the court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance.’

In Attorney-General v Vernazza, which concerned a successor provision to sec 1 of the 1896 Act, Lord Denning observed (p 977) that the provision ‘does not prevent Mr Vernazza from continuing proceedings which it is proper for him to carry on. It only prevents him from continuing proceedings which are an abuse of the process of the court. If the proceedings are not an abuse and he has prima facie grounds for them, then he will be given leave to continue them.’

[11] The power conferred by the 1898 Act is thus procedural in character and designed to prevent abuses of process. An order under the Act is made by the court itself, and imposes a control over future proceedings which is exercised by the court. Nevertheless, the power conferred by the Act (and by equivalent provisions elsewhere) is of a serious character, as an order under the Act ‘denies to such a litigant a right that all other citizens have, namely, to call upon the Court to adjudicate a claim simply by making it in Court in the prescribed manner’ (Attorney-General v Wentworth, per Roden J, p 484). The fact that the 1898 Act provides for the exercise of a constitutional right (as the right of access to the court was described by Lord Diplock in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd, p 977) to be impeded or curtailed has implications for its interpretation, as we shall explain. [12] As we have noted, sec 1 of the 1898 Act requires that the court be satisfied of a number of matters before it ‘may’ make an order. The matters of which it must be satisfied can be summarised as being: (1) that the person against whom the order is sought has ‘instituted vexatious legal proceedings without any reasonable ground 119 SC Lord Advocate v McNamara 603 for instituting such proceedings . . . in the Court of Session or in any inferior court’; and (2) that he has acted in the foregoing manner ‘habitually and persistently’. Each of these statutory requirements raises questions of interpretation. [13] The first question which requires to be considered is what is meant, in this context, by the phrase ‘instituted . . . legal proceedings’. That is a question which has been much discussed in other jurisdictions, and the same difficulties of interpretation arise in the Scottish context. Plainly, a person who initiates proceedings in the Court of Session or the sheriff court as a pursuer or petitioner will fall within the scope of the phrase. But there are many other situations where the answer is less obvious. In the present case, for example, the Lord Advocate founds on circumstances in which the respondent sought to sist himself as a party to a counterclaim, reclaimed against the refusal of the application (and against other decisions in the Outer House) and made allegations, in the course of proceedings in which he was a defender and counterclaimer, which led to the holding of a preliminary proof. It is necessary to know whether such conduct amounts to the institution of legal proceedings within the meaning of the 1898 Act in order to decide whether, on the particular occasion in question, the respondent ‘instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings’. [14] In considering this question, we note in the first place two cases decided in the years shortly preceding the enactment of the 1898 Act. In Hood Barrs v Cathcart (No 2) the Court of Appeal considered a provision in the Married Women’s Property Act 1893 (56 & 57 Vict cap 63) which enabled the payment of costs to be ordered in certain circumstances ‘in any action or proceeding . . . instituted by a woman’. The question arose whether that provision applied where a woman appealed in a case in which she was the defendant. It was held that it did not. Lindley LJ said (pp 378, 379):

‘It appears to me that the word ‘‘instituted’’ is an important one, and that the expression ‘‘proceeding instituted’’ means some action in which a married woman is the actor, in the sense of having started it, and does not include motions made by a married woman who is a defendant, or appeals by a married woman who is a defendant. I do not think the language of the section is large enough to hit such a case as the present. An appeal is not a ‘‘proceeding instituted’’ as the expression is understood by lawyers.’

Davey LJ placed particular emphasis on the word ‘instituted’ (p 380):

‘Now, I take it that the words ‘‘action or proceeding’’ must mean some action, or some proceeding in the nature of an action; that is to say, a proceeding in which a lis is initiated; and it appears to me that ‘‘instituted’’ would be an inapt word for any such proceeding as has been suggested by [counsel]. I have never myself heard of an appeal being ‘‘instituted’’, and I do not suppose any one ever heard of such an expression being applied to an appeal; whereas ‘‘instituted’’ is an apt word for the commencement of a suit.’

[15] That decision was approved by the House of Lords in Hood Barrs v Heriot. Lord Herschell, in whose speech the other members of the House concurred, drew attention to the consequences of adopting a wider interpretation (p 179):

‘If we were to hold that an appeal presented by a married woman is a ‘‘proceeding instituted’’ by her, then I do not think it would be possible to avoid holding that any proceeding taken by a married woman in the course of an action against her would be a proceeding within the meaning of the section. The Court, in each of those steps she might take in an action brought against 120 604 Lord Advocate v McNamara 2009

her, would have jurisdiction to enter upon this inquiry and to deal separately and independently with the costs of each of those ‘‘proceedings’’ under the section. I do not think that was ever intended, nor do I think that the words which the Legislature has employed are apt to give the Court any such jurisdiction. The words ‘‘in any action or proceeding instituted,’’ refer I think to an action or some other litigation initiated by the married woman. Unless the proceeding is one which initiates litigation, it seems to me that it is not a proceeding within the true intent and meaning of the clause upon which reliance is placed.’

[16] A similar approach was adopted in John Robinson & Co Ltd v R, where the Court of Appeal had to consider whether an appeal was a ‘legal proceeding . . . instituted’, within the meaning of the Indemnity Act 1920 (10 & 11 Geo 5 cap 48). More recently, in Advocate General v Macdonald a question arose whether an appeal to this court by the Ministry of Defence against a decision of the Employment Appeal Tribunal constituted ‘proceedings brought by . . . a public authority’ for the purposes of sec 22(4) of the Human Rights Act 1998 (cap 42). Lord Nicholls of Birkenhead, with whose reasoning Lord Hobhouse of Woodborough and Lord Scott of Foscote expressed agreement, said (para 23):

‘On a natural reading of the subsection, proceedings are brought when they are first initiated: by the issue of a writ, or making a discrimination claim, or whatever. Subsequent steps in the proceedings, including an appeal, are all part of the proceedings for the purposes of sec 7(1)(b) of the Act. They are directed towards the proper disposal of the proceedings. In the ordinary course they are not themselves separate proceedings for the purposes of sec 22(4).’

[17] Parliament can be taken to have been aware of the decisions in Hood Barrs v Cathcart (No 2) and Hood Barrs v Heriot when it enacted the 1898 Act. Nevertheless, caution must be exercised in relying on the interpretation of words in another statute dealing with a different subject-matter from the one to be construed. It is necessary, when construing the words as they are used in the 1898 Act, to have regard to the specific statutory context. We note, in the first place, the background to the 1896 Act as explained in Commonwealth Trading Bank v Inglis and Re Boaler. The problem which led to the passing of that Act was the bringing by Mr Chaffers and others of a plethora of actions against numerous holders of public office. The activities of such a prodigious litigant appear to have presented a problem because of the absence of an established practice, or in Scotland at least of any clear power, enabling the court to prevent potential abuses of process in future proceedings as distinct from proceedings already pending before the court. The apparent need for a clear power to anticipate abuses of process in proceedings which were not yet before the court suggests that the intention of Parliament in enacting the 1896 Act (and also, by inference, in enacting the equivalent provisions in the 1898 Act) may have been to address the mischief of the institution of actions which were vexatious, rather than abuses of process (such as the taking of vexatious appeals or the making of vexatious incidental applications) in proceedings which were already before the court. [18] Next, we note that the short title of the 1898 Act, as enacted by sec 2, refers to ‘vexatious actions’. That again tends to suggest that the intention of Parliament was to address the mischief of the institution of actions which were vexatious. The same impression is conveyed by the sidenote of sec 1, ‘Power of Court of Session to prohibit institution of action without leave.’ The taking of an appeal, or of an incidental step in the course of proceedings, or the making of an allegation in the 121 SC Lord Advocate v McNamara 605 course of proceedings, would not naturally be described as the institution of an action. The short title and the sidenote are, of course, far from conclusive; but, like the ordinary sense of the words used in sec 1 itself, they are pointers towards Parliament’s intention (cf R v Montila, per Lord Hope of Craighead, paras 31–36). [19] It is also necessary to bear in mind that the 1898 Act authorises an interference with the rights of the citizen. The extent to which it does so is limited: it is, as we have explained, designed to prevent abuses of the process of the court; and no one has a right to indulge in abuses of process. Nevertheless, since the right of access to the court is a constitutional right, an Act of Parliament which provides for the exercise of that right to be impeded or curtailed falls within the scope of the presumption that statutory interferences with constitutional rights should receive a strict rather than an expansive construction. [20] There are a number of reported decisions on the 1896 Act, and equivalent provisions elsewhere, which offer further assistance. The earliest of these is Re Boaler. The question before the court in that case — whether ‘legal proceedings’ included criminal proceedings — is not one which we require to consider; but the judgment of Scrutton J, in particular, contains observations which are of more general relevance. In interpreting the 1896 Act, his Lordship was influenced by the background to the Act and its short title, but also based his decision on what he described as ‘the presumption against interference with the vital rights and liberties of the subject’ (p 39). He considered that the words used in the Act should be given ‘that meaning which effects the least interference with those rights’. Kennedy LJ applied the same presumption (p 34). [21] Consideration was also given to the meaning of the words ‘instituted . . . legal proceedings’ in the case of Vernazza, when it was before the Court of Appeal (Re Vernazza). The court rejected both the contention that the words meant nothing more than the commencement of an action by a writ, and the contention that the taking of any step in an action was the institution of proceedings. The court appears to have considered, in particular, that the commencement of proceedings by summons, in the course of a liquidation, might be regarded as the institution of proceedings. It did not find it necessary to express a concluded view in relation to appeals, although the majority of the court (Ormerod and Willmer LJJ) were inclined to favour the view that an appeal to the Court of Appeal was the institution of a separate proceeding. The court does not appear to have been referred to the decisions in Hood Barrs v Cathcart (No 2), Hood Barrs v Heriot, Re Boaler and John Robinson & Co Ltd v R. These matters were not considered in the subsequent appeal to the House of Lords, which was concerned with a separate aspect of the case. [22] The question as to what is meant by ‘instituted . . . legal proceedings’ has not arisen in the same way in more recent English case law, as the English provision governing the making of such orders has been repeatedly amended so as to extend its scope. In particular, in 1959 the then current provision (Supreme Court of Judicature (Consolidation) Act 1925 (15 & 16 Geo 5 cap 49), sec 51), which had replaced sec 1 of the 1896 Act and was in similar terms, was amended by the Supreme Court of Judicature (Amendment) Act 1959 (7 & 8 Eliz 2 cap 39) so that, if an order was made under the section, leave was required not only to ‘institute’ any legal proceedings but also to continue any legal proceedings which had been instituted before the order was made. The circumstances in which such an order (now known as a civil proceedings order) can be made were extended by sec 42(1) of the Supreme Court Act 1981 (cap 54), which remains in force. Section 42(1) (as amended) enables a civil proceedings order to be made where: 122 606 Lord Advocate v McNamara 2009

‘any person has habitually and persistently and without any reasonable ground– (a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or (b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another’.

A ‘civil proceedings order’ is defined by sec 42(1A) 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’.

[23] Section 42(1)(b) reflects the fact that applications in the course of proceedings (including proceedings instituted by another person) may be vexatious and may be made without any reasonable ground. It is readily understandable that the English legislation should have been amended so as to enable such applications to form the basis of a civil proceedings order. Section 42(1)(b) does not however have any equivalent in the 1898 Act. Furthermore, in Attorney-General v Jones (as explained in Henry J Garratt & Co v Ewing) the Court of Appeal held that appeals to that court from the High Court or inferior courts fell within the scope of sec 42(1)(b), since they were applications in the course of proceedings which had been instituted in the lower court. Again, it is readily understandable that appeals should be capable of forming the basis of a civil proceedings order, since they may be vexatious and may be brought without any reasonable ground. As we have observed, however, sec 42(1)(b) has no equivalent in the 1898 Act. The court also held in Attorney- General v Jones that a counterclaim made in the High Court or a lower court fell within the scope of sec 42(1)(a), since it was a method of instituting proceedings. Referring to the rule of court which governed the making of a counterclaim, Lord Donaldson of Lymington MR said (p 861):

‘[A] defendant who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action may, instead of bringing a separate action, make a counterclaim . . . A counterclaiming defendant therefore institutes the proceedings in relation to the counterclaim in exactly the same way as a plaintiff institutes proceedings in relation to a claim.’

That reasoning would apply with equal force to a counterclaim made under the equivalent Scottish rules. [24] We should also note a few of the many decisions from elsewhere in the Commonwealth where the meaning of the phrase ‘instituted . . . legal proceedings’, in the context of legislation corresponding to sec 1 of the 1898 Act, has been considered. We note first the conclusions reached, after a full citation of authority, in Foy v Foy (No 2), a decision of the Court of Appeal for Ontario which has been followed in subsequent Canadian cases. The court concluded (p 353):

‘[T]he word ‘‘instituted’’ in ‘‘instituted vexatious legal proceedings’’ . . . only applies to the commencement of an action or proceeding by writ or originating notice of motion or similar originating proceedings.’ 123 SC Lord Advocate v McNamara 607

The legislation therefore did not apply to interlocutory proceedings (ibid). Further- more, in the light of the decisions in Hood Barrs v Cathcart (No 2), Hood Barrs v Heriot and John Robinson & Co Ltd v R, the court also concluded (p 355):

‘[T]he launching of an appeal is not the institution of a separate legal proceeding within the meaning of . . . the Act.’

[25] It is also relevant to note two decisions of the High Court of New Zealand. In Attorney-General v Hill (p 23) the court held that a person who was substituted as a plaintiff in existing proceedings could not be considered to have ‘instituted’ those proceedings for the purposes of the relevant provision. In Attorney-General v Collier (para 32) the court held that interlocutory applications were not the ‘institution of proceedings’ and declined to treat appeals as separate ‘proceedings’, observing that ‘some caution is necessary in an expansive approach to the language of a section which impacts upon rights of access to the Courts.’ The court emphasised that the provision (which, so far as relevant, was in similar terms to sec 1 of the 1898 Act) was more limited in its terms, and therefore also in its scope, than sec 42 of the English Act of 1981. [26] We also note two relevant decisions of the Supreme Court of New South Wales. In Hunter’s Hill Municipal Council v Pedler (p 488) Yeldham J expressed the opinion that interlocutory proceedings taken in the course of an action instituted by another person which was still current were not ‘proceedings instituted’ for the purposes of the legislation, but that an appeal should be regarded as the institution of legal proceedings, since it was equivalent in substance to an attempt to set aside a final decision, and it was to the substance of the matter that regard must be had and not to its form. In Attorney-General v Wentworth (pp 486, 487), on the other hand, Roden J approached the interpretation of the provision on the basis that it should be given a strict construction, following Re Boaler. After citing the judgment in the Hunter’s Hill case, Roden J adopted only the observation that it was the substance of the matter rather than the form that must be considered, and expressed the opinion that interlocutory proceedings were capable of being regarded as ‘proceedings instituted’ for the purposes of the provision ‘if they seek substantive relief, and particularly if they seek to bring an additional party into the proceedings’ (p 492). We would observe, in relation to the Hunter’s Hill decision, that in Scottish procedure the difference between an appeal and an attempt to set aside a final decision would be regarded as more than merely formal. [27] Until the case of HM Advocate v Frost, the meaning of the words ‘instituted . . . legal proceedings’ had not been considered in any detail in any reported Scottish decision. We note, however, that in Lord Advocate v Rizza Lord President Clyde said that the 1898 Act had been placed upon the statute book to deal with ‘the persistent institution of vexatious litigations without reasonable grounds for raising such proceedings’, and summarised the effect of the Act as being not a bar ‘against the raising of actions’ but a protection to defenders ‘against actions which . . . might be oppressive’. Those observations were adopted by Lord President Emslie in Lord Advocate v Henderson (p 519). We respectfully agree with those observations, which reflect the background to the legislation and the natural meaning of the words in question. [28] The meaning of the words ‘instituted . . . legal proceedings’ was considered in greater detail in HM Advocate v Frost. With the exception of Attorney-General v Jones, however, the court was not referred to any of the authorities bearing on this point 124 608 Lord Advocate v McNamara 2009 which we have discussed. The court considered (para 28), and rejected as unduly narrow, an interpretation of the words ‘instituted . . . legal proceedings’ as meaning that the person must have been a pursuer. The court concluded, in particular, that the lodging of a counterclaim must be seen as equivalent to the raising of an action, and hence as the institution of proceedings. The court also stated (para 29):

‘We have also reached the conclusion that the enrolling of a reclaiming motion in an action to which a person is a party, whether as a pursuer or defender, may properly be seen as the institution of proceedings susceptible of control under section 1 of the 1898 Act. The enrolling of a reclaiming motion is for several purposes seen as a separate proceeding; furthermore, in Lord Advocate v Cooney . . ., the court, in reaching its conclusion that an order should be made under section 1 of the 1898 Act, took into account the lodging of appeals against the dismissal of certain actions after the respondent in that petition had failed to lodge caution.’

[29] We have to express our reservations as to the correctness of the conclusion reached in that paragraph (without, as we have explained, reference to most of the relevant authorities, or to most of the points which we have discussed). It appears to us that a narrower interpretation of the phrase ‘instituted . . . legal proceedings’ would reflect a more natural construction of the words. The enrolling of a motion for review of a Lord Ordinary’s interlocutor would not in our opinion ordinarily be described as the ‘institution’ of proceedings in the Court of Session. That interpretation is supported, as we have explained, by the construction placed by the courts on almost identical words both prior to the 1898 Act and subsequently. It is also supported, as we have explained, by the background to the Act, the short title and the sidenote to sec 1. It is consistent with the avoidance of an expansive construction of legislation interfering with the constitutional right of access to the court. It is also consistent with the conclusion reached in relation to appeals in Attorney-General v Jones (as explained in Henry J Garratt & Co v Ewing) and in Foy v Foy (No 2), and with the general approach to construction adopted in Re Boaler and Attorney-General v Collier. [30] It is unnecessary, and would be unwise, for us to attempt to produce a definition of ‘the institution of proceedings’ for present purposes, a task described by Willmer LJ in Re Vernazza (p 215) as ‘almost impossible’. Interpreting sec 1 of the 1898 Act in the manner which we have suggested, it would not be confined to the initiation of proceedings by summons or petition. We agree that it includes the lodging of a counterclaim, for the reasons explained in the cases of Attorney-General v Jones and HM Advocate v Frost. As was said in Attorney-General v Wentworth,itis the substance of the matter rather than the form that must be considered. On the other hand, for the reasons explained in Attorney-General v Hill, we would find it more difficult to regard a person who was sisted as a party to an existing counterclaim as falling within the scope of sec 1; but, for reasons we shall explain, it is unnecessary for us to decide that question in the present case. Similarly, we do not require to rely on the reclaiming motions enrolled by the respondent. As we have indicated, however, we find it difficult in any event to accept that a reclaiming motion would ordinarily fall within the ambit of the provisions. The approach adopted in Lord Advocate v Cooney does not appear to us to be inconsistent with that view. The appeals referred to in that case were in proceedings instituted by the vexatious litigant: they do not appear to have been treated as separate ‘proceedings’ for the purposes of the 1898 Act. The taking of hopeless appeals was one of a number of aspects of the proceedings which were said to be relevant ‘since they are 125 SC Lord Advocate v McNamara 609 illustrative of the vexatious nature of the litigant’ (per Lord Justice-Clerk Wheatley, p 434). In the case of Frost, the proceedings on the basis of which the court concluded (para 38) that the requirements for an order under the 1898 Act were satisfied were actions in which the litigant in question had been a pursuer. In reaching its conclusion, the court does not appear to have treated reclaiming motions as separate proceedings. In those circumstances, the first sentence of para 29 of the court’s opinion in that case does not appear to us to form part of the ratio of the decision. [31] We consider next the requirement that the person against whom the order is sought must have instituted ‘vexatious legal proceedings without any reasonable ground’. The word ‘vexatious’ was not defined in the 1896 or 1898 Acts. As we have explained, however, it was (and remains) a familiar term in practice relating to abuses of process, and it has been understood as bearing the same meaning in the 1896 and 1898 Acts. The meaning of the term was considered by Lord Phillips of Worth Matravers MR, delivering the judgment of the court, in Bhamjee v Forsdick (para 7):

‘The courts have traditionally described the bringing of hopeless actions and applications as ‘‘vexatious’’, although this adjective no longer appears in the Civil Procedure Rules: compare RSC Ord 18, r 19(1)(b) with CPR r 3.4(2). In Attorney-General v Barker Lord Bingham of Cornhill CJ, with whom Klevan J agreed, said, at p 764, para 19 that ‘‘vexatious’’ was a familiar term in legal parlance. He added:

‘‘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.’’ ’

As Toohey J observed in Jones v Skyring (para 33), ‘there is perhaps some tautology’ in a provision which requires that proceedings be vexatious and without any reasonable ground. We respectfully agree with the view expressed in HM Advocate v Frost (para 30) that ‘legal proceedings may be properly seen as ‘‘vexatious’’ if they are devoid of reasonable grounds for their institution’. [32] Characteristic features of vexatious proceedings were identified by the High Court of New Zealand in Attorney-General v Collier (para 36):

‘Vexatious litigation is frequently accompanied by complex pleadings, a widening circle of defendants as litigation proceeds, frequency of striking out of part or all of the statements of claim, inability to accept unfavourable decisions, escalating extravagant or scandalous claims (frequently involving allegations of conspiracy or fraud) and failure to pursue proceedings once instituted. The authorities cited to us from other jurisdictions demonstrate the consistency with which characteristics such as these are present in vexatious litigation.’

[33] This approach is consistent with the Scottish authorities. In Lord Advocate v Cooney, for example, the court referred to (p 434):

‘[T]he nature of the actions the respondent has raised, the persons he has convened as defenders, his purpose in using or rather abusing the legal 126 610 Lord Advocate v McNamara 2009

processes to carry on a war of attrition, the hopelessness of his actions yet his persistence in pursuing them to the limits which the law allows, and the damaging effects of this conduct on his victims.’

[34] We note, however, that an important distinction has been drawn in England and elsewhere, for the purposes of the legislation concerned with vexatious litigants, between an action which is vexatious and an action which is conducted vexatiously. In Re Langton Lord Parker LCJ said (p 1578):

‘Despite the fact that it may be said that the manner in which that action was conducted was vexatious, it must be remembered that the respondent acted in person, and, not only that, but that the action itself could not be said to be a vexatious action; it was one which the respondent was fully entitled to litigate and did litigate and accordingly, so far as these proceedings are concerned, I ignore that action except as a matter of history.’

That approach has been followed in Australia (eg Attorney-General v Wentworth, p 496) and New Zealand. In Attorney-General v Collier, for example, the court said (para 31):

‘It is therefore not the manner in which proceedings are conducted which is in issue in considering the Crown’s application, but whether the nature and substance of the proceedings themselves can be characterised as vexatious.’

We are content to follow that approach in the present case. [35] We now consider the fundamental requirement that the person against whom the order is sought must have instituted the proceedings in question ‘without any reasonable ground for instituting such proceedings’. In that regard, we note that in HM Advocate v Frost the court said (para 31):

‘As regards the words ‘‘without any reasonable ground’’, it is our view that this court, in adjudicating upon an application such as this one, may conclude that certain proceedings had no reasonable ground simply upon the basis that those proceedings failed, or were abandoned before determination. In a case such as this, it would plainly be impracticable to re-examine the merits, or lack of them, of all of the proceedings founded upon by the petitioner. We therefore feel able to proceed upon the basis of determinations made by other judges in the proceedings founded upon. That was the course followed by the court in Lord Advocate v Henderson ... and Lord Advocate v Cooney’.

[36] We agree that there can be no question, on an application under the 1898 Act, of relitigating the merits of earlier proceedings which have already been the subject of adjudication (cf Attorney-General v Jones, p 863). The court can find that proceedings were instituted without any reasonable ground on the basis of opinions expressed by the judges in the cases in question which warrant that conclusion. Even in the absence of such expressions of opinion, that conclusion may be warranted by the surrounding circumstances. We have to express our reservations, however, as to whether proceedings can be treated as having been instituted without any reasonable ground ‘simply upon the basis that those proceedings failed, or were abandoned’. As Roden J commented in Attorney-General v Wentworth (p 498):

‘It would be an unhappy situation indeed, if one could only argue a unique, doubtful or ‘‘unlikely’’ proposition of law, at risk of being declared vexatious.’ 127 SC Lord Advocate v McNamara 611

In our opinion, the fact that proceedings failed or were abandoned does not of itself warrant the conclusion that they were instituted without any reasonable ground. We respectfully agree, in this respect, with the observations of the High Court of New Zealand in Attorney-General v Collier (para 40):

‘The fact that a plaintiff fails in litigation does not demonstrate that the proceedings are vexatious, it is necessary to examine the reasons given in the judgment to determine whether the proceedings are properly to be characterised in that way . . . Similarly, while the fact that a proceeding once filed is not pursued is not of itself indicative that it is without substance, the filing of a number of proceedings which are not pursued may be evidence of vexatiousness in all the circumstances.’

[37] The Scottish decisions are in our view consistent with this approach. In Lord Advocate v Henderson the court reached its conclusion (p 519) ‘having examined the pleadings in the actions relied upon by the Lord Advocate and the history of the actions thereafter.’ In Lord Advocate v Cooney the court appears to have examined the proceedings instituted by the respondent in some detail, and noted that ‘his actions have been variously described by judges as hopeless, irrelevant, incompetent and without merit.’ Similar observations were made in HM Advocate v Bell (p 530), where again the court did not confine its attention to the outcome of the proceedings in question. In HM Advocate v Frost, the court examined in detail the circumstances in which, and grounds upon which, the proceedings were commenced, and the observations made by the judges who had dealt with those proceedings. [38] We next consider the requirement that the vexatious legal proceedings must have been instituted without any reasonable ground ‘habitually and persistently’. In HM Advocate v Frost it was said that ‘these words imply that, to constitute a proper basis for an application, there must be at least more than one such proceeding’ (para 27). We respectfully agree; but it appears to us that the meaning of each of these words goes beyond the number of the proceedings in question. In Attorney-General v Wentworth Roden J, although not attempting a definition of universal application, observed (p 492):

‘ ‘‘Habitually’’ suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; ‘‘persistently’’ suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness’.

Those observations have been accepted in subsequent Australian cases. They are consistent with observations in recent English authorities (such as Attorney- General v Barker, per Lord Bingham LCJ, para 22, and Attorney-General v Covey, para 57, approving the observations of Rose LJ in the Divisional Court), and appear to us to be helpful in identifying the distinct shades of meaning of the two terms which Parliament has selected. [39] The importance of the requirement that the institution of vexatious legal proceedings without any reasonable ground has been habitual and persistent is illustrated by some of the decided cases. In Foy v Foy (No 2), for example, the court found that it had no jurisdiction to make an order, as there were only two actions on which an order might be based, and they were held to be ‘not sufficient to bring the [appellant] within the words ‘‘habitually and persistently’’ ’ (p 356). In Attorney- General v Barker the court reached a similar conclusion. Although there were in that 128 612 Lord Advocate v McNamara 2009 case 19 actions in question, they had all been commenced within a three month period when the defendant had apparently been suffering from a mental breakdown. By the time of the hearing, he had been returned to health, and it appeared unlikely that he would embark on further litigation. The same conclusion was reached in Attorney-General v Wentworth, where there were three actions on which an order might be based, and those actions were set in the context of a much larger number of actions which could not be described as vexatious, some of which had been successful. It appears to us, in the light of that decision, that it may be necessary to qualify the statement of the court in HM Advocate v Frost that (para 41):

‘The fact that, in certain cases, the respondent may have succeeded in obtaining a decision in his favour is irrelevant to the issue which we have to decide’.

As was said in Attorney-General v Covey, it is necessary to look at the whole history of the respondent’s litigious activity; and, depending on the circumstances, it is conceivable that a history of instituting proceedings which were not vexatious may have a bearing on the court’s assessment of whether the respondent can be said to have ‘habitually’ instituted vexatious proceedings. [40] The next point we require to note is that, if it is established that the conditions laid down in sec 1 of the 1898 Act are met, the court has a discretion to make an order under the section, but is not obliged to do so. Whether, where the conditions are met, the court will exercise its discretion to make an order will depend on the court’s assessment of whether it is appropriate to do so in the interests of justice. In exercising its discretion, the court is entitled to have regard to any matter which is relevant to that assessment, including the conduct of the litigant in other proceedings besides those which form the basis of the court’s jurisdiction to make the order. The prima facie right of all citizens to invoke the jurisdiction of the civil courts, and the availability of other powers to deal with abuses of process, will be relevant considerations. So too will be the need to protect members of the public, and the resources of the court itself, against further abuses of process. The extent to which vexatious litigation drains the resources of the court, in particular, is a matter of considerable concern. In that regard, the court in HM Advocate v Frost (para 44) expressed its agreement with what had been said by Staughton LJ in Attorney- General v Jones (p 865), where he explained why 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. He said that there were at least two reasons:

‘First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; secondly the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances, and should not be squandered on those who do not.’

As has been said in other cases, it is necessary to look at the whole picture, having regard to the cumulative effect of the litigant’s activities, both on the other persons involved in the proceedings and on the administration of justice generally. It also has to be borne in mind that an order under the section operates not as a bar to the bringing of further proceedings but as a filter. [41] Finally, in relation to the legislation, it is convenient at this point to consider the respondent’s contention that the making of an order under the 1898 Act is incompatible with the Convention right of access to a court, guaranteed by Art 6(1) of the European Convention of Human Rights and Fundamental Freedoms. That 129 SC Lord Advocate v McNamara 613 contention must be rejected, for reasons which were fully explained by the Court of Appeal in Bhamjee v Forsdick (paras 16, 17):

‘16 . . . It is now well settled both at common law and under Strasbourg jurisprudence that a court has power to regulate its affairs in such a way that its processes are not abused. The governing principles are set out clearly in the judgments of the European Court of Human Rights in Golder v United Kingdom (1975) 1 EHRR 524, 536, 537, paras 36, 38–39, Ashingdane v United Kingdom (1985) 7 EHRR 528, 546, para 57 and Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, 475, para 59. These cases proclaim the message that the right of access to the courts may be subject to limitations in the form of regulation by the state, so long as two conditions are satisfied: (i) the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired; (ii) a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. 17 In H v United Kingdom (1985) 45 DR 281 the European Commission of Human Rights applied these principles when it decided that an order refusing the applicant leave to bring an action by virtue of an earlier order made against him under the Vexatious Actions (Scotland) Act 1898 did not constitute an arguable violation of his Convention rights. Indeed, it said, at p 285, that ‘‘some form of regulation of access to court is necessary in the interests of the proper administration of justice and must therefore be regarded as a legitimate aim’’.’

As the Commission noted in HvUK(p 285), the order made under the 1898 Act did not limit the applicant’s access to court completely, but provided for review by a senior judge of any case the applicant wished to bring. Such a review was not such as to deny the essence of the right of access to court; it had a legitimate aim; and it was not disproportionate to the aim pursued.

Proceedings in question

[42] The petition is founded upon four proceedings. We shall consider these in chronological order.

(1) Tods Murray WS v Arakin Ltd

[43] In 1996 Tods Murray WS, a firm of solicitors, raised an action against Arakin Ltd for payment of their professional fees in respect of earlier proceedings in which they had acted on behalf of Arakin, including proceedings brought against Arakin by their former accountants for payment of their professional fees. Arakin were (and remain) a company in which the respondent was one of the principal shareholders and directors, the other shareholders and directors being members of his family. Arakin defended the action on grounds relating to the rendering of the fees: in particular, it was argued that VAT invoices had not been rendered in conformity with the relevant VAT legislation. They also lodged a counterclaim in the action, seeking payment of damages in respect of loss said to have been suffered as a result of the pursuers’ breach of contract or negligence. The defenders were initially represented in the action by Levy & McRae, another firm of solicitors. In 2000 the respondent and Mr Martin Frost applied by minute to be sisted as parties to the counterclaim (but not the principal action) in place of the existing defenders, having taken an assignation of Arakin’s interest in the litigation. On 16 May 2000 the Lord Ordinary refused the motion as incompetent, but granted leave to reclaim: he 130 614 Lord Advocate v McNamara 2009 observed that the motion for leave to reclaim had not been opposed, and that no authority bearing directly on the issue had been cited. On 10 April 2001 the reclaiming motion was refused. The respondent and Mr Frost then applied by minute to be sisted as parties to both the action and the counterclaim in place of Arakin. That application was granted on 29 May 2001. The respondent and Mr Frost then took part in the proceedings as the defenders. [44] In the subsequent course of the proceedings, allegations were made by the defenders to the effect that the pursuers and their solicitors, Simpson & Marwick, had deliberately tampered with the court process in order to deceive the court and defraud Arakin. The allegations were made in a number of documents. It is sufficient, in order to convey the general tenor, to refer to two of them. In a document dated 10 January 2002, of which the respondent was the author, it was said that a production had been removed from the process as ‘a deliberate act to hide the glaring inconsistencies and additions’, that another production had been ‘tampered with to prejudice Arakin or Frost/McNamara’, and that another production had been ‘tampered with to make [another production] look authentic.’ A further document of which the respondent was the author, submitted for a hearing on 13 February 2002, alleged that the pursuers or their solicitors had ‘continued to knowingly and wilfully deceive the court, all with intent to defraud Arakin’, and that ‘Tods Murray knowingly and wilfully gave the court false accounts with the intent to fraudulently recover sums from Arakin’. On 6 March 2002 the court decided, seemingly ex proprio motu, to order a proof to determine the validity of the allegations that the process had been tampered with. [45] The evidence at the proof lasted 15 days and was completed in August 2003. In her opinion, dated 31 October 2003, the Lord Ordinary found that none of the allegations to the effect that the process had been tampered with had been substantiated. She noted that none of the fourteen witnesses led in evidence by the defenders had been approached before the allegations had been made and insisted in. In relation to one of the witnesses, who was at the time the Dean of the Faculty of Advocates, she commented that ‘he had no relevant evidence to give and it was difficult to see why he had been called as a witness’. She observed that ‘the defenders regarded the proof as a vehicle for seeking to air grievances that went far beyond the issues’ remitted to proof. She commented that the defenders ‘persisted in attempting to pursue irrelevant lines of enquiry, which was time consuming and distracted from the issues with which the proof was concerned’. She noted that the defenders were unwilling to accept her rulings as to the scope of the proof, insisting that her interpretation of the interlocutor allowing the proof was wrong. She also noted evidence given by Mr Frost, in the course of being examined by Mr McNamara, to the effect that the evidence at the proof had assisted them in their cases against Levy & McRae and Alexander Stone & Co (which we discuss below), and would assist in future proceedings against the solicitors acting on behalf of the pursuers. The Lord Ordinary commented:

‘In short, it was a very full and frank admission by Mr Frost that he and Mr McNamara had been trying to use the proof to advance their interests in other existing and proposed litigations and in aspects of the present litigation that are not covered by the interlocutor [allowing the proof].’

[46] The Lord Ordinary summarised the respondent’s evidence. Two aspects are relevant to the present proceedings. First, the respondent ‘persisted in the general allegation that there had been tampering and doctoring of the process and said 131 SC Lord Advocate v McNamara 615 there had been collusion and conspiracy among the legal profession’. He accused witnesses, and Tods Murray’s counsel, of lying to the court. Secondly, he ‘confirmed that he and Mr Frost had taken assignations of various claims in order to pursue litigation’. There were said to be five such claims, three of which (including the counterclaim in that action) were claims by Arakin, one of which was a claim by Mrs Joan Pentland-Clark, and the last of which was a claim by the Usher family. The respondent and Mr Frost were said to have purchased the two latter claims. [47] The Lord Ordinary concluded that none of the allegations made by the defenders were well founded, and that they had been based on unfounded assumption and suspicion. No enquiries had been made before the allegations were insisted in and the proof was fixed. She commented that ‘Mr Frost and Mr McNamara were apt to make representations that were not always correct and which they knew or ought to have realised were wrong’, and that ‘the proof took an inordinate length of time due to the fact that both defenders persistently resorted to irrelevant lines of enquiry and were disorganised in their presentation.’ She observed:

‘In all the circumstances, I have reached the view that [counsel for the pursuers] was correct to characterise the defenders’ approach as reckless and I agree that they had no reasonable grounds for their asserted belief in the truth of the allegations that they made.’

[48] In the present proceedings, counsel for the petitioner submitted that the proceedings in Tods Murray WS v Arakin Ltd were relevant to meeting the requirements of sec 1 of the 1898 Act. They had been treated as relevant in that regard in HM Advocate v Frost, seemingly on the basis that the respondent and Mr Frost were counterclaimers in those proceedings. It was however accepted that the counterclaim could not be said to lack reasonable grounds: the proceedings remained before the court, and no decision on the merits either of the principal action or of the counterclaim had yet been taken. The application in 2000 to be sisted as parties to the counterclaim could however be regarded as the institution of legal proceedings without reasonable grounds; and the subsequent reclaiming motion could also be so regarded. In any event, if the requirements of sec 1 were satisfied by the other proceedings founded upon, the respondent’s conduct in relation to Tods Murray WS v Arakin Ltd had plainly been vexatious, and was relevant to the court’s exercise of its discretion. [49] In answer, the respondent explained that Arakin had originally instructed Levy & McRae and other solicitors to defend the proceedings brought against it by Tods Murray. After five firms of solicitors had withdrawn from acting, the respondent had resigned his directorship of Arakin and taken an assignation from it in order to defend its interests in the litigation. In view of the respondent’s lack of knowledge of court procedure, the assignation had included Mr Frost, who had held himself out as a person with expertise in conducting litigation. Mr Frost had also acquired assignations from Mrs Pentland-Clark and the Usher family, but the respondent had been party to proceedings, as an assignee, only on behalf of Arakin. He had subsequently broken off relations with Mr Frost. He regretted his involvement with Mr Frost, and the consequences which that involvement had had for the use of court time. The respondent added, in his answers, that neither he nor Arakin was able to obtain independent and impartial representation against members of the Law Society of Scotland, by reason of the arrangements for professional indemnity insurance for all practising solicitors in Scotland, and that he had in 132 616 Lord Advocate v McNamara 2009 consequence been denied a fair hearing as required under Art 6(1) of the European Convention and the Human Rights Act 1998. The respondent in addition presented detailed arguments in order to demonstrate that there were reasonable grounds for the defence of the proceedings brought by Tods Murray and for the counterclaim against them. [50] In considering the relevance of these proceedings to sec 1 of the 1898 Act, we note in the first place that the principal action was instituted by Tods Murray, and that it has not been suggested to us that the counterclaim to the action was instituted without reasonable grounds. The application made by the respondent and Mr Frost in 2000 to be sisted as parties to the counterclaim was unsuccessful, but we are not persuaded that it, or the subsequent reclaiming motion, can be said to be have been instituted without any reasonable ground, bearing in mind that the Lord Ordinary granted leave to reclaim, that the motion for leave to reclaim was unopposed, and that there was seemingly no authority bearing directly on the issue. In those circumstances, it is unnecessary to decide whether the application to be sisted, or the reclaiming motion, could be regarded as the institution of legal proceedings within the meaning of sec 1 of the 1898 Act. The making of the allegations of tampering with the process, in the course of the proceedings, cannot in our view be regarded as being in itself the institution of proceedings, and the decision to allow a proof of those allegations appears to have been taken by the Lord Ordinary ex proprio motu. We conclude, accordingly, that the proceedings in Tods Murray WS v Arakin Ltd are not relevant to the requirements of sec 1. The conduct of the respondent in those proceedings during 2002 and 2003 is however potentially relevant to the exercise of the court’s discretion under sec 1, in the event that the requirements of the section are otherwise satisfied. That appears to us to have been the basis on which the court proceeded in HM Advocate v Frost, where it reached its conclusion (para 38) that the requirements of sec 1 were met in the light of other proceedings, but treated Mr Frost’s conduct in relation to Tods Murray WS v Arakin Ltd as relevant to the exercise of its discretion. In the present case, a consideration of the respondent’s conduct can therefore be deferred until we have decided whether the other proceedings relied upon are sufficient to meet the requirements of sec 1.

(2) McNamara v Levy & McRae

[51] In April 2000 the respondent and Mr Frost raised an action in the sheriff court, as assignees of Arakin, against Levy & McRae, a firm of solicitors. They sought damages of over £5 million as compensation for losses said to have been suffered as a result of the defenders’ breach of contract or negligence when acting on behalf of Arakin in the case of Tods Murray WS v Arakin Ltd. The action was brought after Levy & McRae had sued Arakin for payment of their professional fees. It proceeded to a debate on the relevancy of the pursuers’ pleadings, which began before Sheriff Peebles on 23 February 2001. At the outset of the debate, Sheriff Peebles was requested by the pursuers to decline jurisdiction on the ground that he was a personal friend of a partner in Tods Murray. The sheriff declined to recuse himself, observing that the action was one between the pursuers and Levy & McRae. The debate proceeded but was not completed that day. A further diet was fixed for 21 May 2001. That diet did not proceed, as on 18 May 2001 the respondent and Mr Frost commenced proceedings against the First Minister and Sheriff Peebles (discussed below). In December 2001 the action against 133 SC Lord Advocate v McNamara 617

Levy & McRae was remitted to the Court of Session, where a further hearing on relevancy was fixed for 20 and 21 March 2003. That hearing was discharged the previous day, the pursuers being found liable for the expenses of the discharged diet. A further diet was then fixed for 2 and 3 October 2003. During the intervening period the pursuers lodged a minute of amendment which sought to replace their existing pleadings in their entirety, introducing, inter alia, a claim by the respondent personally for damages of over £600,000. At the hearing on 2 October 2003, the debate on relevancy did not proceed. The Lord Ordinary ordered the pursuers to lodge pleadings which were in the proper form. There were then repeated delays in having the continued diet fixed, due partly to the illness of the Lord Ordinary. It was ultimately set down to proceed on 15 and 16 February 2005. At the hearing on 15 February 2005 the pursuer was not present but was represented by counsel, who sought a discharge of the diet. On the motion of the defenders, and with the concurrence of Mr Frost, the Lord Ordinary dismissed the action. No opinion was issued. It does not appear from the interlocutor that the motion for dismissal was opposed by counsel on behalf of the respondent. In any event, it was concurred in by Mr Frost, who was one of the joint assignees pursuing the action. The decree of dismissal was not reclaimed against. [52] We note that the closed record in the proceedings contains no conclusions. It contains allegations that Simpson & Marwick obtained a warrant to arrest and inhibit on the dependence of the action brought by Tods Murray against Arakin by means of a fraudulent deception of the court. The allegations of professional negligence made by the pursuers against Levy & McRae were, as the respondent accepted before us, made and persisted in without the support of any expert opinion. [53] Counsel for the petitioner submitted that the court was entitled to conclude that these proceedings had been instituted without any reasonable ground. They could properly be described as vexatious not only for that reason but also in the light of the manner in which they had been conducted. The respondent on the other hand said that he had been unable to attend the hearing on 15 February 2005 as his wife was then in hospital. He had been content to let the matter rest rather than to pursue any further procedure. The action was not without an arguable basis, although it might have been incompetently pled. [54] As we have explained, these proceedings were based on allegations of professional negligence which were unsupported by the opinion of anyone qua- lified to express an opinion on that issue. It is not suggested that they were instituted in the expectation that such support could be obtained; nor does there appear to have been any attempt to obtain such support. In those circumstances, we consider that we are entitled to conclude that the proceedings were instituted without any reasonable ground and were vexatious. The manner in which the proceedings were conducted (eg the repeated discharge of hearings, the pursuers’ failure to lodge pleadings in the proper form, and their decision at the last minute not to persist further in the action) appears to us to be potentially relevant to the exercise of the court’s discretion under sec 1, in the event that the requirements of the section are otherwise satisfied.

(3) McNamara and Frost v McLeish and Peebles

[55] As we have explained, in February 2001 the respondent and Mr Frost unsuccessfully applied to Sheriff Peebles to recuse himself from hearing the debate 134 618 Lord Advocate v McNamara 2009 in their action against Levy & McRae. The continued debate was due to be heard by Sheriff Peebles on 21 May 2001. In order to prevent Sheriff Peebles from hearing the debate, the respondent and Mr McNamara began proceedings against him personally. The then First Minister was also convened as a defender. The initial writ was served on 18 May 2001. The action was remitted to the Court of Session in August 2001. After sundry procedure it was abandoned by Mr Frost in March 2004. The respondent however continued with the action, and a diet of debate was fixed for 25 November 2004. The respondent abandoned the action at that diet. [56] The legal basis of the action, so far as directed against the First Minister, is manifestly untenable: the action proceeds on the basis that he owes contractual duties to litigants in the Scottish courts in respect of the provision of sheriffs, and is vicariously liable for wrongs committed by sheriffs, who are described as his employees. So far as directed against Sheriff Peebles, the action is based on allegations of the utmost gravity, including allegations of malice and dishonesty. Before us, the respondent described the allegations against the sheriff as ‘a load of nonsense’. [57] In his submissions, the respondent maintained that this action had been raised at the insistence of Mr Frost, who had drafted the writ. He conceded however that he had acquiesced. He submitted that, since the defenders had agreed to his abandoning the action without the payment of expenses, the proceedings could not be regarded as vexatious. He submitted that he had reasonable grounds for proceeding against Sheriff Peebles, given the sheriff’s friendship with a partner in Tods Murray. He continued to maintain that the sheriff should have recused himself. [58] It appears to us to be plain that these proceedings were instituted without any reasonable ground, and indeed for a collateral purpose. They were a blatant abuse of the process of the court, and are properly characterised as vexatious. The respondent cannot avoid responsibility for the proceedings: the pleadings bear his signature, and he persisted with the proceedings even after they had been abandoned by Mr Frost.

(4) Frost and McNamara v Alexander Stone & Co

[59] In 1998 Alexander Stone & Co, a firm of solicitors, raised an action against Arakin in Glasgow Sheriff Court for payment of their professional fees. They had succeeded Tods Murray as the solicitors acting for Arakin in the defence of the action brought against them by their former accountants for the payment of their fees, and in the counterclaim to that action. In accordance with the usual practice, the pursuers’ account was remitted by the sheriff to the auditor of court for taxation. After a taxation hearing at which the defenders were represented, the auditor taxed the fees and issued his report. Following the issue of the auditor’s report, the defenders attempted unsuccessfully to obtain an extension of the period for lodging objections. They then appealed against that decision to the sheriff principal, but abandoned the appeal before it was heard. The respondent then applied to be sisted as a party to the proceedings for the purpose of making a counterclaim against the pursuers. That application was refused as incompetent. An appeal to the sheriff principal was likewise refused on 21 November 2000, under reference to the Lord Ordinary’s opinion dated 16 May 2000 in Tods Murray WS v Arakin Ltd.In the course of his opinion, the sheriff principal observed that ‘the taxation process is now complete’. The matter then proceeded to a debate before the sheriff on the relevancy of the defenders’ averments disputing the pursuers’ entitlement to their 135 SC Lord Advocate v McNamara 619 fees as taxed by the auditor of court. The sheriff found that, since the issues raised had been fully canvassed before the auditor, and he had determined that the fees in question had been properly charged, the matter was concluded, and the defenders’ pleadings were ‘an attempt to reopen a matter which is closed’. He granted decree on 17 July 2001 for the fees as taxed. The defenders then appealed to the sheriff principal, but the appeal was refused for want of insistence. An attempt was then made to appeal to the Court of Session, but the appeal proceeded at the instance of the respondent and Mr Frost, purportedly acting on the defenders’ behalf. On 11 October 2002 the appeal was refused as incompetent. On 19 December 2002 a charge in respect of the sum awarded by the sheriff was served on Arakin. [60] Shortly thereafter a summons was presented, at the instance of the respondent and Mr Frost as assignees of Arakin, seeking the reduction of the sheriff’s decree, suspension and interdict. It appears that the decree was challenged, in particular, on the ground that VAT invoices had not been rendered in respect of the fees in conformity with the relevant VAT legislation. On 30 December 2002 the Lord Ordinary granted an ex parte application, before calling for interim suspension of the charge and interim interdict of further enforcement of the decree. The defenders then sought the recall of the interim orders, on the basis that the summons did not disclose any legal basis for setting aside a decree in foro. When that motion was heard, the pursuers sought a continuation to allow them to lodge the summons for calling and to introduce by way of amendment substantial further specification of the ground of action. A continuation was granted. The pursuers did not however take either of the steps that had been discussed. Instead, on the morning of the continued diet (16 February 2003), they faxed to the court a document in the form of a new summons. The Lord Ordinary granted the defenders’ motion for recall of the interim orders, and refused to allow the summons to be amended by incorporating into it the contents of the faxed document. He issued an opinion in which he explained the concept of res noviter in an action of reduction of a decree, under reference to a passage in the speech of Lord Sumner in McCarroll v McKinstery. The pursuers reclaimed against the decision. The reclaiming motion called on the summar roll on 28 May 2003. The summons had not yet called. The court expressed concern that the reclaimers were raising in argument matters that did not form part of their pleadings. The hearing was continued until 11 June 2003 with a view to the summons meantime being called and the reclaimers considering amendment. On 11 June 2003 the court again continued the case to a later date, when it was to be determined whether the reclaiming motion should be entertained. That continued hearing was fixed for 19 March 2004. During the intervening period, Mr Frost withdrew from the proceedings by granting to the respondent an assignation of his right to pursue the action. The respondent, as the remaining pursuer, then proceeded with the reclaiming motion, which was refused. Lord Hamilton, delivering the opinion of the court dated 1 April 2004, observed that a decree in foro was capable of being reduced only on limited and well-recognised grounds (para 15). Among the limitations was that described by Lord Sumner in the dictum which had been cited by the Lord Ordinary. Lord Hamilton noted:

‘Mr McNamara did not suggest that that passage was in any respect unsound or that it was inapplicable to the present situation. Although repeatedly invited by this court to address the problem which it presented for his contention, he at no stage did so. His own narrative of events was fatal to [his] contention.’ 136 620 Lord Advocate v McNamara 2009

Lord Hamilton concluded (para 16):

‘In these circumstances the pursuer’s summons contains no material (at least in so far as relied on by Mr McNamara) which could found a prima facie case for reduction of the decree in foro. Nor was any material brought to our attention by Mr McNamara which could found such a case’.

Following the issue of that opinion, the pursuer enrolled a motion to have the defenders’ fees taxed by the Auditor of the Court of Session, notwithstanding that the fees had already been taxed by the auditor at Glasgow Sheriff Court and that a decree had been granted for payment of the taxed amount. On 21 May 2004 the motion was refused. On 11 January 2005 the pursuer abandoned the action. [61] The respondent’s answers to the present petition, so far as relating to these proceedings, begin with five pages of criticisms of the conduct of the senior counsel who acted on behalf of Alexander Stone & Co in the proceedings in question. The criticisms are not confined to his conduct of those proceedings, but include criticisms of his conduct in more recent proceedings relating to the winding up of Arakin. The allegations made against him, some of which the respondent repeated in his submissions, are of a serious character. They include allegations of deception of the court, and an allegation of collusion with a clerk of court in ‘doctoring and tampering with the court process’. It is alleged that the present petition is the result of a complaint made by senior counsel to the petitioner with the intention of preventing the exposure of his misconduct. The respondent submitted in addition that Arakin had been denied access to justice, in breach of the Human Rights Act 1998, as a result of the unwillingness of any solicitor to act against the mutual interests of solicitors under their arrangements for professional indemnity insurance. In consequence, the respondent had had to present the case himself, without knowledge of legal matters. That had resulted in court time being taken up which would not have been required if he had been able to obtain legal assistance which was independent of the Law Society of Scotland’s insurance scheme. The respondent continued to maintain that ‘the action, while legally incompetent as pled, was not unfounded in fact and law (if properly pled) and therefore cannot be construed as vexatious’. He emphasised that the Inner House had not dealt with the merits of the sheriff court decree. He appeared to consider that he might yet be able to challenge that decree successfully. [62] It appears to us to be clear, particularly in the light of the observations made by Lord Hamilton, that these proceedings were instituted without any reasonable ground. They were an attempt to overturn a decree in foro, after the competent appeal procedures had been exhausted, in the absence of any matter which could be described as res noviter. As such, they were in our opinion utterly hopeless, and can properly be described as vexatious.

Requirements of sec 1 of the 1898 Act

[63] Section 1 of the 1898 Act is applicable where a person has ‘habitually and persistently instituted vexatious legal proceedings without any reasonable ground’. For the reasons we have explained, we are satisfied that the respondent instituted the proceedings in McNamara v Levy & McRae, McNamara and Frost v McLeish and Peebles and Frost and McNamara v Alexander Stone & Co without any reasonable ground, and that each of those proceedings was vexatious. The next question which we require to consider is whether the respondent’s institution of such proceedings can properly be described as habitual and persistent. 137 SC Lord Advocate v McNamara 621

[64] As we have explained, the action against Levy & McRae arose out of the earlier proceedings involving Tods Murray and was based on the contention that Arakin’s defence in that earlier action had not been properly conducted by their then solicitors. The action against the First Minister and Sheriff Peebles in turn arose out of the proceedings against Levy & McRae, and was based on the contention that the sheriff who had heard part of those proceedings ought not to have done so, because of his supposed relationship with Tods Murray. The action against Alexander Stone & Co arose out of earlier proceedings brought by Alexander Stone & Co against Arakin, and sought to challenge the outcome of those proceedings. All of these actions were essentially attempts, in one form or another, to relitigate an issue dealt with in earlier proceedings. They all demonstrate the respondent’s unwillingness to accept the decisions of the court: unwillingness to accept the decision of Sheriff Peebles not to recuse himself, in the Levy & McRae action, led to the raising of proceedings against him in order to prevent him from continuing to hear the case; and unwillingness to accept the decision of the sheriff, in the action brought by Alexander Stone & Co against Arakin, led to the raising of the action of reduction of the sheriff court decree. They disclose a pattern of behaviour, which can be described as habitual, involving a failure to accept decisions which are no longer open to legal challenge, and the drawing of defenders into a widening circle of litigation because of their involvement in a prior proceeding in which the respondent failed to secure the result which he desired. They also demonstrate persistence: determination, a willingness to continue in the face of difficulty, and a refusal to take no for an answer. In these circumstances, although the proceedings in question are only three in number, we are nevertheless satisfied that they justify the conclusion that the respondent has instituted vexatious proceedings habitually and persistently.

Exercise of discretion

[65] Counsel for the petitioner invited us to exercise our discretion to make an order under sec 1 of the 1898 Act having regard in particular to the nature of the allegations made by the respondent in proceedings such as those brought against the First Minister and Sheriff Peebles; the respondent’s conduct of proceedings as described, for example, by the Lord Ordinary in Tods Murray WS v Arakin Ltd; the worry, expense and inconvenience occasioned to the parties against whom the respondent instituted proceedings; and the effect of the respondent’s activities on judicial resources, the court system and other litigants. Some emphasis was also placed on the fact that the respondent had instituted proceedings as an assignee, although it was accepted that, as a director and shareholder in Arakin, he had a personal interest in that company’s affairs and was in a different position from Mr Frost. The respondent invited the court to refrain from making such an order. He expressed regret that he had relied on Mr Frost in the proceedings in question. He accepted that his lack of legal expertise had caused delay in proceedings, and that his pleadings and submissions had at times been irrelevant as a consequence of his lack of legal knowledge and his inability to obtain independent legal representation. He submitted however that the proceedings in question, although defectively pleaded, had a sound foundation. He emphasised that he had been endeavouring to pursue litigation with a view to redressing what he believed to be serious wrongs done to his family company and to himself, albeit with a lack of understanding of the relevant principles of law and procedural requirements. He pointed out that he 138 622 Lord Advocate v McNamara 2009 was a person of substantial means and that he had met every award of expenses made against him. It was open to other parties to proceedings instituted by him to seek an order for caution, or for an interim award of expenses, in order to ensure that their expenses would be met. He submitted that, in the absence of impecuniosity, there was no basis for any argument that an order under the 1898 Act was necessary in the public interest. [66] As we have explained, in considering whether to exercise our discretion to make an order under the 1898 Act, we are entitled to have regard to the entire history of the three actions which are relevant to meeting the requirements of sec 1, including the manner in which those actions were conducted. We are also entitled to have regard to the proceedings in the case of Tods Murray WS v Arakin Ltd, to the respondent’s written pleadings and oral submissions in the present proceedings, and to any other matter which is germane to our assessment of whether such an order is appropriate in the interests of justice. In relation to the manner in which the proceedings have been conducted, we note in the first place the respondent’s willingness to persist with hopeless actions well beyond the point when, on any rational assessment, the time had come to stop. This is demonstrated most clearly by the proceedings against Alexander Stone & Co, which were persisted in for a period of years after the fundamental defect had been explained by the Lord Ordinary in his opinion dated 14 February 2003. Even after the Inner House had refused the reclaiming motion and had explained once more the finality of the sheriff court decree, the respondent made a further attempt to reopen the question by having the fees taxed for a second time. The result has been a waste of judicial time and resources, as well as of the resources of the other party to the litigation (in so far as they have not recovered the expense which they have incurred). We also note the respondent’s habit of proceeding with actions over a period of years only to abandon them when a substantial hearing was fixed, as in the proceedings against Levy & McRae and in those against the First Minister and Sheriff Peebles, resulting in a further waste of time and resources. [67] The proceedings in the case of Tods Murray WS v Arakin Ltd are relevant in a number of respects to the exercise of our discretion. We shall confine our attention to the allegations which led to the proof held in 2003, and to the findings of the Lord Ordinary following that proof: we shall not comment on the principal action or the counterclaim, as they remain in dependence before the court. The first point we note is the making of allegations of extreme gravity: something which was also a feature of other proceedings we have discussed, including in particular the proceedings against the First Minister and Sheriff Peebles. There is no abuse of process necessarily involved in the making of allegations, no matter how serious, against solicitors, sheriffs or holders of high office. The courts must be, and are, prepared to receive and deal with such allegations, as is demonstrated by the proceedings in the Tods Murray case and the action against the First Minister and Sheriff Peebles, in particular. To make such allegations recklessly is however a serious abuse of process. It is not for us to investigate whether all the many and various allegations from time to time made by the respondent were ill founded or not; and we cannot simply assume that, because they are serious and are expressed without restraint, they must necessarily be groundless. The allegations made against Tods Murray and their solicitors in Tods Murray WS v Arakin Ltd have however been thoroughly investigated and, after proof, have been found to be without any reasonable basis. In addition, as we have already noted, the respondent accepted that the allegations made against Sheriff Peebles were ‘a load of nonsense’. 139 SC Lord Advocate v McNamara 623

The making of reckless allegations of the nature made in those cases was, as we have explained, a serious abuse of process. [68] Next, we note that, according to the findings of the Lord Ordinary, the proof in the Tods Murray action was used by the respondent for purposes unconnected with the issues in that case; and, as we have already noted, the proceedings against the First Minister and Sheriff Peebles were also used for a collateral purpose. That was a further abuse of process. [69] In relation to the Tods Murray action, we also note the Lord Ordinary’s observation that a great deal of time was wasted as a result of the disorganised presentation of the respondent’s case and the persistent pursuit of irrelevant matters notwithstanding the rulings of the court. We have already noted, in relation to other proceedings, the waste of court time through incompetent presentation (eg in the action against Levy & McRae, when a hearing had to be discharged because of the pursuers’ failure to lodge pleadings in the proper form), and an unwillingness to accept the orders of the court (eg the decision of Sheriff Peebles not to recuse himself in the action against Levy & McRae). [70] Turning finally to the respondent’s pleadings and submissions in the present proceedings, we note that they display some of the features of the earlier proceedings. The respondent has continued to maintain that Sheriff Peebles ought to have recused himself, and that the decree granted in Alexander Stone & Co v Arakin Ltd was ultra vires of the sheriff. More generally, he has sought to demonstrate that proceedings which have already been adjudged to be devoid of merit were in reality meritorious, as if the present proceedings were a further opportunity to have the court consider issues which have already been determined. It is not however only in that respect that his pleadings and submissions have contained material which is irrelevant to the issues before the court. In addition, the respondent has made allegations of a serious character concerning senior counsel’s conduct in the proceedings relating to the winding up of Arakin. Those allegations are irrelevant to the present proceedings. It is also material to our exercise of our discretion that the respondent persisted in addressing the court on irrelevant matters despite being repeatedly directed that they were of no relevance and that he should move on. [71] A further feature of the history which we take into account is that all the targets of groundless litigation, and of reckless allegations, have been lawyers or judges who encountered the respondent, in a purely professional or judicial capacity, in connection with court proceedings. Such persons cannot avoid an involvement with disappointed litigants in the course of carrying out their professional and judicial functions. It is however in the public interest that they should be able to perform those functions without being harassed by groundless litigation. [72] The fact that the respondent has brought some of the proceedings in question as an assignee, on the other hand, appears to us to be of little if any significance. There is of course nothing objectionable in principle in the assignation of rights, or in the institution of proceedings by the assignee. In the case of HM Advocate v Frost, the court attached significance to Mr Frost’s practice of entering into commercial arrangements under which he took assignations for the purpose of bringing proceedings in which he would appear as a party litigant. In circumstances where the requirements of the 1898 Act were met, the fact that he was effectively carrying on a business as a litigant was a relevant factor. From what the respondent has told us, however, it would appear that he is not in a comparable position. The fact that he has instituted proceedings as an assignee of his family company, in circumstances where the company had no professional legal representation and might otherwise have 140 624 Lord Advocate v McNamara 2009 lacked representation altogether, does not appear to us to be a significant factor in the exercise of our discretion. [73] The fact that the respondent appears to have met all awards of expenses against him, and to have sufficient means to meet further awards, is a relevant factor, but is far from conclusive. An award of expenses in favour of the party against whom vexatious proceedings are conducted does not prevent the worry, inconvenience and irrecoverable expense occasioned by such proceedings. Nor does it prevent the waste of judicial and other court resources, or the consequential effect which that has on other litigants. [74] We bear in mind the serious nature of an order under the 1898 Act, which is reflected in the stringent requirements that must be met before the court possesses the power to make such an order. We also however bear in mind that, as we have explained, the Act is designed to protect the court’s own processes against the unwarranted usurpation of its time and resources, which, as Staughton LJ said in Attorney-General v Jones, are ‘barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances, and should not be squandered on those who do not’. Linked with that objective is the need to protect the community at large, including other litigants, against the disruption caused to the court system by the repeated institution of groundless proceedings. The Act is also designed to protect those who would otherwise be subjected to the worry and expense caused by vexatious litigation. In the circumstances of the present case, we are satisfied that each of those objectives warrants the making of an order against the respondent. We shall accordingly grant the prayer of the petition.

The Court granted the order sought.

Scottish Government Legal Directorate – Party 141

[2012] UKPC 6 Privy Council Appeal No 0088 of 2010

JUDGMENT

SANS SOUCI LIMITED (Appellant) v VRL SERVICES LIMITED (Respondent)

From the Court of Appeal of Jamaica

before

Lord Hope Lord Clarke Lord Sumption Lord Reed Lady Paton

JUDGMENT DELIVERED BY LORD SUMPTION ON

7 March 2012

Heard on 1 February 2012 142

Appellant Respondent Vincent Nelson QC Richard Mahfood QC Gavin Goffe Javan Herberg QC Dr Lloyd Barnett Weiden Daley

(Instructed by Myers, (Instructed by Charles Fletcher & Gordon) Russell LLP) 143

LORD SUMPTION:

1. The Board has before it an appeal and a cross-appeal arising out of arbitration proceedings in Jamaica. The appeal is concerned with the scope of an order made by the Court of Appeal of Jamaica remitting the award to the arbitrators. The cross- appeal raises two discrete questions on costs.

The facts

2. The Appellant company was the proprietor of the Sans Souci Hotel at White River, St. Mary. The Respondent entered into a contract dated 12 October 1993 to manage the hotel. It is convenient to refer to the parties as “the Proprietor” and “the Manager” respectively. The agreement was for a period of just over ten years to 31 March 2004, plus a further ten years at the Manager’s option. At the relevant time, the option had been exercised, and the agreement was therefore due to expire in 2014. For present purposes, the provisions which matter are clauses 4(A) and 13-16. By clause 4(A) the Manager was entitled to an annual management fee based on the gross revenue and gross operating profit of the hotel business. Clause 14 conferred on either party a right of termination in certain events, including force majeure. By clause 15, the agreement would also terminate if the Proprietor sold the hotel during its term, but before doing this he was required to offer it to the Manager. Clause 13 provided for disputes to be referred to arbitration before two arbitrators and an umpire in accordance with the laws of Jamaica.

3. In March 2003, the Proprietor purported to terminate the agreement under clause 14 on the ground of force majeure. This provoked a dispute which was referred to arbitration. It was common ground throughout the arbitration proceedings that the agreement was at an end. The issues were defined in general terms in Terms of Reference prepared by the arbitrators at the outset of their proceedings. Paraphrasing this document, they were (i) whether the termination of the agreement had come about by the lawful exercise of the Proprietor’s right of termination or by their unlawful repudiation; and (ii) if the latter, what damages were recoverable by the Manager in consequence.

4. Before the arbitrators, the Manager claimed damages under three heads. The main claim was for the gross management fees which would have accrued from the termination of the agreement until 2014, discounted for early receipt. This was disputed mainly on the ground that the correct measure of damages was the Manager’s loss of profit, and that in arriving at the loss of profit it was necessary to deduct from the gross fees the so-called “unrecoverable expenses”. These were expenses which, according to the Proprietor, the Manager would have incurred in performing its

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functions and could not have recovered under the terms of the agreement. The main issue about them was whether they were really unrecoverable. Second, there was a claim for the value of the Manager’s right of first refusal on the sale of the hotel, if it should be held that the hotel would have been sold before the natural expiry of the agreement. This head of claim appears to have been introduced in case the Proprietor should contend that the hotel would have been sold and the payment of management fees thereby brought to an end before 2014. In the event, however, the Proprietor did not say this. Its case was that there was no evidence of any intention to sell and no reason to suppose that if there was a sale the Manager would emerge as the buyer. At some stage, the Manager appears to have conceded this, and the point fell away. Finally, the Manager claimed certain expenditure said to have been wasted as a result of the termination. This head was, in the event, unchallenged.

5. The arbitrators issued their award on 16 July 2004. They held that the Proprietor had repudiated the agreement, and awarded damages of US$6,034,793. A small proportion of this sum represented the wasted expenditure. The rest was the present value of management fees accruing between the termination of the contract and 2014, on assumptions about the gross revenue and operating profit during that period which were derived from expert evidence given at the hearing. The tribunal made no deduction from the projected management fees for “unrecoverable expenses”. Apart from referring briefly to this issue as arising from a “set-off” claimed by the Proprietor, they said nothing about it at all.

6. After receiving the award, the Proprietor applied to the Court under Section 11 of the Arbitration Act to set it aside or remit it to the arbitrators. One of the grounds of the application was the arbitrators had not dealt with the “unrecoverable expenses”. A number of other grounds were also put forward, but they failed and are not part of this appeal. It is unnecessary to say anything about them.

7. The Judge, Harris J, dismissed the Proprietor’s application in its entirety. The Proprietor appealed, and the Court of Appeal gave judgment on 12 December 2008. On most points, they agreed with the Judge. However, they allowed the appeal on the ground based on the “unrecoverable expenses”. They held that by characterising the Manager’s case about these expenses as being based on set-off, the arbitrators had misunderstood it. As a result, they had failed to make the appropriate findings about the expenses, or to take them into account in the assessment of damages, or to explain why they had not done so. They remitted the award to the arbitrators in the following terms:

“The appeal against the award of damages is allowed and the matter is remitted to the Arbitrators to determine the issue of damages only.”

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This order was perfected on 2 January 2009.

8. When the matter came back before the tribunal, the Proprietor sought to raise two points on damages in addition to the question of “unrecoverable expenses”, and to lead fresh evidence in support of them. The first was that the Proprietor had in fact sold the hotel on 10 September 2005. This was presumably the prelude to an argument that management fees could not in any event have been earned beyond that date. The second additional point was that economic problems adversely affecting the Jamaican tourist industry after the termination of the agreement would have reduced the management fees below the level which the tribunal, in their award, had derived from the expert evidence. The tribunal refused to entertain either point. In a preliminary ruling on 20 February 2009, they ruled that the award had been remitted to them for the limited purpose of dealing with the “unrecoverable expenses” to be deducted from the future management fees. They were not therefore entitled to reassess the value of the management fees themselves.

9. The Proprietor responded with fresh court proceedings to challenge the arbitrators’ preliminary ruling. Their case was that the Court of Appeal had remitted the question of damages generally, and that all points relevant to damages were therefore in principle open before the arbitrators. This was rejected in the Supreme Court and again in the Court of Appeal. The issue now comes before the Board some seven years after the date of the original award.

The appeal: the scope of the remission

10. Section 11 of the Arbitration Act empowers the Court to “remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire.” This statutory power has its origin in section 8 of the English Common Law Procedure Act 1854. It exists in order to enable the tribunal, which would otherwise have been functus officio from the publication of its award, to address issues which were part of the submission to arbitration but were not resolved, or not properly resolved, in the award. Leaving aside the perhaps anomalous category of cases in which an award has been remitted on the ground that fresh evidence has become available since it was made, the essential condition for the exercise of the power is that something has gone wrong with the proceedings before the arbitrators. Some error, oversight, misunderstanding or misconduct must have occurred which resulted in the tribunal failing to complete its task and justifies reopening what would otherwise be a conclusive resolution of the dispute.

11. It is apparent from the reasons given by the Court of Appeal in December 2008 that, in ordering a remission, they were concerned only with the way in which the arbitrators had dealt with, or failed to deal with, the “unrecoverable expenses”.

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Harrison P., delivering the leading judgment, identified the error or oversight which justified the remission at paragraph 69:

“Whether or not expenses incurred by the Respondent were in fact ‘unrecoverable’, as claimed by the appellant in its Points of Defence, or reimbursable as contended by the Respondents, should have been determined by the arbitrators. The arbitrators were required to demonstrate in their award that they accepted that the expenses were ‘unrecoverable’, or alternatively payable by the Appellant. At its lowest, the arbitrators should have demonstrated that they considered the issue of ‘unrecoverable expenses’ as contended for by the Appellant.”

No other matter is identified by the Court of Appeal as warranting a remission. Indeed, no other criticism was made of the way in which the arbitrators had dealt with damages.

12. The Proprietor’s response is simple, perhaps too simple. It is that the scope of the remission is determined by the Court of Appeal’s order. The order allowed “the appeal against the award of damages”, and remitted the award to the arbitrators to determine “the issue of damages”. In the absence of any words of limitation, it is said that this unambiguously means the entire issue as to damages as formulated in the arbitrators’ Terms of Reference. In the absence of any ambiguity in the language of the order, it should not be construed by reference to the limited reasons given for making it.

13. In the opinion of the Board, this approach to the construction of a judicial order is mistaken. It is of course correct that the scope of a remission depends on the construction of the order to remit. But implicit in the Proprietor’s argument is the suggestion that the process of construing the order is to be carried out in two discrete stages, the first of which is concerned only with the meaning of the words, and the second with the resolution of any “ambiguities” which may emerge from the first. The Court’s reasons, so it is said, are relevant only at the second stage, and then only if an “ambiguity” has been found. The Board is unable to accept these propositions, because the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the Court made it, so far as these circumstances were before the Court and patent to the parties. The reasons for making the order which are given by the Court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the interpretation of an order may be critically affected by knowing what the Court considered to be the issue which its order was supposed to resolve.

Page 4 147

14. It is generally unhelpful to look for an “ambiguity”, if by that is meant an expression capable of more than one meaning simply as a matter of language. True linguistic ambiguities are comparatively rare. The real issue is whether the meaning of the language is open to question. There are many reasons why it may be open to question, which are not limited to cases of ambiguity.

15. As with any judicial order which seeks to encapsulate in the terse language of a forensic draftsman the outcome of what may be a complex discussion, the meaning of the order of the Court of Appeal in this case is open to question if one does not know the background. The order refers generally to “the issue of damages” because if the arbitrators were to decide that there were “unrecoverable expenses”, they would not simply deduct them from the amount which they had awarded. They would have to deduct them from the undiscounted gross management fees, and then discount the net figure for early receipt. But the reference in the order to “the issue of damages”, although necessary, begged the question “Which issue of damages?” The order does not itself answer it. Only extrinsic evidence can do that. The Proprietor accepts this. Mr Nelson’s case was that it is admissible to consult the arbitrators’ Terms of Reference to identify “the issue of damages” to which the order referred. But it appears to the Board that this concession, which was clearly rightly made, exposed the illogicality of the Proprietor’s case. If it is admissible to construe an order of remission by reference to the issues in the arbitration, it cannot rationally be held inadmissible to construe it by reference to the issues which the remitting court regarded as calling for reconsideration by the arbitrators. As Rix J pointed out in his valuable judgment in Glencore International A.G. v. Beogradska Plovidba (The "AVALA") [1996] 2 Lloyd's Rep. 311, 316:

“When... a Court remits an award to an arbitrator, it is not remitting a whole dispute, unless upon the terms of the order it expressly does so. It generally remits something narrower, and where it does so against the background of an arbitration which has already been defined by pleadings and argument before an arbitrator, it is some one or more of the issues as so defined within the scope of the reference that in general must be considered to be the subject matter of the remission.”

16. Of course, it does not follow from the fact that a judgment is admissible to construe an order, that it will necessarily be of much assistance. There is a world of difference between using a Court’s reasons to interpret the language of its order, and using it to contradict that language. The point may be illustrated by the decision of the Court of Appeal in England in Gordon v. Gonda [1955] 1 WLR 885, where an attempt was made to contradict what the Court regarded as the inescapable meaning of an order, by arguing that the circumstances described in the judgment could not have justified an order which meant what it clearly said. Therefore, it was said, the judge must have meant something else. The answer to this was that any inconsistency between the circumstances of the case or the reasoning of the Court and the resultant

Page 5 148

order was properly a matter for appeal. A very similar argument was rejected by the Board for the same reason in Winston Gibson v Public Service Commission [2011] UKPC 24. Decisions such as these (and there are others) are not authority for the proposition that a Court’s reasons are inadmissible to construe its order. They only show that the answer depends on the construction of the order and that the reasons given in the Judgment may or may not make any difference to that.

17. These considerations apply generally to the construction of judicial orders. But there are particular reasons for giving effect to them in the context of the judicial supervision of arbitration proceedings. An arbitration award is prima facie conclusive. The Court has only limited powers of intervention. It exercises them on well- established grounds such as (to take the case arising here) the arbitrators’ failure to deal with some matter falling within the submission. The reopening by the arbitrators of findings which there were no grounds for remitting and which they had already conclusively decided would therefore have been contrary to the scheme of the Arbitration Act. The terms of the order may of course in some cases be such that it must be concluded that the Court did exceed the proper limits of its functions. But it should not readily be assumed to have done so, especially when its reasons show that it has not.

18. The arbitrators were right to reject the Proprietor’s attempt to introduce new challenges to the assessment of the gross future management fees in February 2009, and the Courts below were right to endorse their decision.

The cross-appeal: Costs of the Proprietor’s application to set aside or remit

19. This point may be shortly dealt with, for it turns entirely on the facts.

20. The Court of Appeal reserved judgment for nineteen months on the Proprietor’s application to set aside or remit the award. They then handed it down on one day’s notice on 12 December 2008, the last day of term. No advance copy of the judgment was available before it was handed down. Counsel who had been engaged for the Manager on the application were unable to attend, and it was necessary to send junior counsel to take the judgment who knew little or nothing about the case. The judgment as handed down dealt with the costs of the application by ordering that half of the Proprietor’s costs should be paid by the Manager. But no argument about costs was either invited or heard.

21. Once the Manager’s advisers had studied the judgment, they decided to ask for a more favourable order as to costs than the Court had proposed. They wrote to the Registrar of the Court of Appeal on 7 January 2009 asking to be heard. Unfortunately, unknown to the Manager or its representatives, the order had in the mean time been perfected on 2 January 2009. On 20 January 2009, the Manager formally applied for a

Page 6 149

more favourable order. On the following day the Registrar wrote in answer to the Manager’s letter of 7 January to convey the view of Panton P., the President of the Court of Appeal, that the Court of Appeal was functus officio and that in any event the order for costs was right. Panton P. had not been a member of the court that decided the Proprietor’s application. Nor, judging by the Registrar’s letter, had he consulted those who had been. He also appears to have been unaware of the Manager’s formal application of 20 January. The Manager’s application on costs was ultimately heard on 9 March 2009 by a division of the Court of Appeal presided over by Panton J himself. On 2 July 2009, they gave Judgment rejecting it. Their reason, in summary, was that that there had been no miscarriage of justice, essentially because “there was ample opportunity for Counsel for the Applicant to make an application to be heard on the issue of costs before the order was perfected”: Panton P. at [32]; cf. Cooke at [49]. By leave of the Board, the Manager now cross-appeals against that decision.

22. It is the duty of a Court to afford a litigant a reasonable opportunity to be heard on any relevant matter, including costs, on which he wishes to be heard. The Court of Appeal included an order for costs in their Judgment of 12 December 2008 without hearing either party upon it. The Practice Direction in Jamaica assumes that submissions on costs, if any, will be made before the Court rises after giving Judgment, a course which it would have been impossible for the Manager’s representatives to follow in this case because they had had no advance notice of the contents of the judgment and only one day’s notice of the fact that it was to be delivered. This procedure may nevertheless be perfectly acceptable, provided that the order included in the Judgment is provisional, and that parties are given a reasonable opportunity to address the Court on costs later.

23. The importance of finality in litigation has been emphasised by generations of common lawyers. Ultimately there must come an end to the parties’ opportunities for reopening matters procedural or substantive which have been judicially decided. This principle is, however, founded on an assumption that they were decided in accordance with the rules of natural justice. Notwithstanding the importance of finality, the rule of practice is that until either (i) a reasonable time has elapsed, or (ii) the order has been perfected, a party who has not been heard on costs or other matters arising out of a judgment, is entitled as of right to be heard. Thereafter, the Court still has an inherent jurisdiction to hear him, but the test is more exacting. The order will be varied only in exceptional circumstances, when the party can demonstrate that the form of the order can be attributed to a miscarriage of justice: Taylor v. Lawrence [2002] EWCA Civ. 10, [2003] QB 528 at [55]. The Board would endorse the test which was formulated in Re Uddin [2005] I WLR 2398, at [4], and applied by the Court of Appeal in this case, that there must be “special circumstances where the process itself has been corrupted.” This is not the occasion for extended review of the circumstances which will satisfy this test, but the Board has no doubt that one of the circumstances which will satisfy it is that the party desiring to be heard did not have a reasonable opportunity to be heard at an earlier stage when the test would have been less formidable.

Page 7 150

24. The Board cannot avoid a strong sense of discomfort about the rather peremptory procedure which was adopted in this case. However, the Manager was ultimately heard on costs, and it seems to the Board that when the Court of Appeal came to rule upon it they applied the correct test. The decisive factor was the Court’s finding that in the three week period between the delivery of judgment on 12 December 2008 and the perfection of the order on 2 January 2009, the Manager had had a reasonable opportunity to apply to be heard. The Board has been invited to reject this finding. But they are satisfied that it would not be appropriate for them to do so. The Court of Appeal was familiar with the practicalities of litigation in its jurisdiction. It was in a much better position than the Board is to assess what opportunities there were for the Manager to make its application in that period. There are no grounds on which its finding can properly be disturbed.

The cross-appeal: the costs of the guarantee

25. There is brief coda to the cross-appeal. It arises from the fact that in 2005 the Supreme Court stayed enforcement of the award on terms that the Proprietor should pay it in full against a guarantee for its repayment so far as the subsequent proceedings should go the Proprietor’s way. The Manager had to pay the substantial charges for setting up the guarantee and maintaining it in force, which it now wishes to claim as part of the costs of the proceedings. However, no application to this effect was made to the Court of Appeal when the Manager sought to vary the order for costs made on 12 December 2008. And if it had been, it would inevitably have met the same fate as the Manager’s principal application on costs. Since the premise of this particular argument is that the Manager succeeds in its application to reopen the Court of Appeal’s order for costs, the point does not arise.

Conclusion

26. The Board will humbly advise her Majesty that the appeal and the cross-appeal should both be dismissed. The parties will have twenty-eight days in which to lodge written submissions about the order to be made for the costs of the proceedings before the Board.

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lady Paton [2013] CSIH 50 Lord Mackay of Drumadoon P746/10 Lord Marnoch OPINION OF THE COURT

delivered by LADY PATON

in the petition of

THE RIGHT HONOURABLE ELISH ANGIOLINI QC, Her Majesty's Advocate Petitioner;

against

JAMES DUFF Respondent:

for

an order under the Vexatious Actions (Scotland) Act 1898 ______

Act: Balfour; Scottish Government Legal Directorate - Petitioner Alt: Party - Respondent

12 June 2013 152

Introduction

[1] The respondent raised numerous court actions against inter alios the Lord Advocate, the Chief Constable of Dumfries and Galloway Constabulary, a local authority

(Dumfries and Galloway Council), and the former trustee in his sequestration. As a result of the number and nature of those actions, the Lord Advocate raised the present petition (P746/10) seeking to have the respondent declared a vexatious litigant. A hearing took place on 28 November 2012. The respondent represented himself, as he has done in many of his litigations.

The respondent's submissions and counsel's reply

[2] At the outset, the respondent made the following submissions:

1. The respondent had previously moved the court to ordain the petitioner to state

precisely what was "vexatious" about the actions. The petitioner had not done so.

2. There was a conflict of interests as the petitioner was the Lord Advocate who

would obviously support a chief constable, yet one of the respondent's main

complaints was that the Chief Constable of Dumfries and Galloway

Constabulary and his officers had fabricated police reports.

3. There was a conflict of interests as counsel appearing for the petitioner

(Mr Balfour) had represented the Dumfries police and Dumfries and Galloway

Council. 153

4. It was appropriate to sist the present petition (P746/10) to await the outcome of

the respondent's appeal against the decision of the Inner House dated 18 May

2012 to the European Court of Human Rights in Strasbourg (see case number 12

below, Duff v Shearer (B56/11, XA48/11)).

5. The respondent stated that Brendan Kearney, the former head of legal services of

Dumfries and Galloway Council, had been disciplined and sacked in May 2012.

According to the respondent, it was Mr Kearney who had suggested that the

respondent should be declared a vexatious litigant.

6. There was a conspiracy dating back to the 1980s to have the respondent declared

a vexatious litigant (see, for example, a police report dated 18 June 1986).

[3] Counsel for the petitioner responded as follows:

1. The written argument for the petitioner set out why it was contended that the

litigations were vexatious.

2. This court could properly decide whether the petitioner was a vexatious litigant

by applying the statutory test to the objective information placed before the

court.

3. Counsel stated that he had not in fact represented either the Dumfries police or

Dumfries and Galloway Council.

4. The appeal which had gone to Strasbourg was only one of many cases. It might

take some time before the outcome was known.

5. Counsel had no knowledge of the allegations concerning Mr Kearney.

6. Any question of a conspiracy was for this court to assess. 154

[4] Having taken time for consideration, this court concluded that there was nothing in the six points raised by the respondent which prevented the court from considering the merits of the petition P746/10 and answers, largely on the basis of the written pleadings, notes of argument, and productions. Parties were so advised.

[5] The respondent then reminded the court that he was seeking to have case number 1 below (Duff v Forbes) re-opened. A motion was to come before Lord Glennie in

December 2012 (as to which, see paragraphs [10] to [12] below).

The respondent's sequestrations

[6] The respondent was sequestrated on 27 May 1976. On 10 March 1993, Lord Morison granted the trustee his discharge. In his judgment, Lord Morison observed (at page 7) that averments in the respondent's minute of amendment criticising the trustee's conduct of the sequestration were -

" ... utterly lacking in any specification. It is impossible to tell in what respect or respects the respondent wishes to allege [that the trustee] failed to perform his duties in a proper and diligent manner."

[7] In 2007 the respondent was again sequestrated: see paragraph [18] below.

The respondent's court actions

[8] What follows is a chronological summary of most of the actions raised by the respondent. Sources include (i) the petition as amended on 25 July 2012 number 20 of process; (ii) the respondent's adjusted answers dated 15 November 2010 number 8 of 155

process, his 3-page fax dated 26 January 2012, and a minute of amendment for the respondent dated 30 August 2012 number 22 of process; (iii) productions for the petitioner, namely files containing court papers (tabs 6/1 to 6/28); (iv) a fourth inventory for the petitioner containing two initial writs 6/29 and 6/30; (v) written submissions for the petitioner; (vi) oral submissions presented by counsel for the petitioner and by the respondent at the hearing on 28 November 2012; (vii) a manuscript letter from the respondent to the Court of Session dated 29 November 2012; (viii) information concerning the current position in each action which, at the request of this court, was retrieved from the relevant court processes by the Deputy Principal Clerk of Session

(DPCS); and (ix) further information from the Keeper of the Rolls concerning the current position in the petition to the nobile officium.

[9] The summary is restricted to actions initiated by the respondent. As noted by Sheriff

Principal C G McKay at paragraph 17 in his opinion in Duff v Forbes (case number 7 below):

" ... Mr Duff explained that the grievances for which he was seeking redress were that he ought not to have been sequestrated in the first place since the debts for which he was made bankrupt were not personal to him but debts of his limited company and secondly that in the course of the sequestration a valuable asset, land belonging to him, had been sold by the trustee to a company of which one of the directors, if not the only director, was a commissioner in his sequestration ..."

The actions are as follows:

1. Duff v Forbes (the trustee in sequestration): the Court of Session 156

[10] In November 1979 the trustee in sequestration made certain adjudications on the creditors' claims. The respondent appealed those adjudications. On 17 March 1983

Lord Kincraig refused his appeal. The respondent reclaimed, but withdrew his reclaiming motion. In 1986 the respondent presented a petition to the nobile officium seeking an accounting of the trustee's intromissions, in which the prayer was amended to read "to declare the sequestration of James Duff granted on 27 May 1976 to be at an end". The petition was sisted, with motions to recall the sist being refused in 1987. Also in 1987, the respondent petitioned the Court of Session in terms of section 82 of the

Bankruptcy (Scotland) Act 1913, again seeking an accounting of the trustee's intromissions. The petition was sisted in 1987. On 10 March 1993, when granting the trustee his discharge, Lord Morison noted in his opinion (page 4) that the section 82 petition sisted in 1987 contained "no live issue". In 1994, the sist in the petition to nobile officium was recalled and a question of expenses dealt with. In 1995 the respondent raised a petition seeking to have Lord Kincraig's decision quashed. The petition was dismissed.

[11] In 2012 the respondent sought to resurrect the section 82 petition which had been sisted some 25 years previously in 1987. The petition was formerly numbered P2/5/87 and is now numbered P153/01. As is recorded in a Note by Lord Menzies dated

13 November 2012 (issued when the court was dealing with the appeal in another process XA72/12, case number 8 Duff v Forbes below):

"[2] Until this month, the last interlocutor in the section 82 petition was pronounced in 1993, some 19 years ago. The petition relates to Mr Duff's sequestration in 1976. We were told by Mr Jones [solicitor advocate] for the 157

defender and respondent that the trustee in sequestration was granted discharge by this court in about March 1993 at a hearing in which Mr Duff was represented by counsel..."

[12] In the 1987 petition, the respondent refers in paragraph 1 to the award of sequestration against him on 27 May 1976, the election of the trustee, the trustee's adjudication of claims in November 1979, the respondent's appeal against those adjudications and the refusal of his appeal on 17 March 1983. In paragraphs 2 and 3, the respondent avers that the debts were owed by a limited company J & J Duff

(Lochmaben) Ltd, and not by him personally. The respondent further avers that his appeal was refused "by reason of [his] inability to prove the company and not him was indebted to [the creditor]." In paragraph 4 of the 1987 petition, the respondent refers to section 82 of the Bankruptcy (Scotland) Act 1913 and seeks an accounting from the trustee of his intromissions and management of the bankruptcy estate. In the prayer of the petition, the respondent craves the court to ordain the trustee in bankruptcy to account for his intromissions and management. In his recent adjustments to the 1987 petition, the respondent has added averments inter alia that:

"...The decision of Lord Kincraig dated 17 March 1983 should be treated as void, because a party with no legal right to enter into a process cannot defend the cause. Lord Kincraig acted ultra vires by allowing the [trustee] and his agents to defend the appeal which was clearly an abuse of process. Reference is made to Skinner's Trustee v Keith 4 March 1987. The [trustee's] discharge should be treated as void due to the fact that it was obtained by deception. The [trustee] and his agents deliberately withheld from the court that three court actions were still pending when the [trustee] had lodged his application in October 1991. Reference is made to Swanson v Wight 1836 SC 652."

158

Further adjustments made by the respondent emphasise that the indebtedness was that of the limited company, and not of the respondent. Two pleas-in-law have also been added by adjustment, as follows:

"1. The decision of Lord Kincraig being obtained by an abuse of process, the decision should be treated as void.

2. The respondent's discharge being obtained by deception, that decision should be treated as void."

At a hearing on 20 December 2012, Lord Glennie issued the following interlocutor:

"The Lord Ordinary having heard the party and solicitor advocate...allows [certain productions and adjustments; orders Notes of Argument]; and allows a procedure roll hearing on the petition and answers as adjusted, and restricted to the competency and relevancy issues..."

The procedure roll debate on issues of competency and relevancy was fixed for 6 June

2013.

[13] In March 2013, the respondent sought to reactivate the petition to the nobile officium, some nineteen years after the sist was recalled in 1994. He enrolled a motion. On

24 April 2013, the case was to be put out By Order for the respondent to address the court on further procedure. That hearing was discharged. A fresh date was fixed for

21 May 2013. On that date, the court heard submissions and refused the prayer of the petition.

1A. Duff v L Barclay & Company (1994: A158/94): the Court of Session

[14] In 1994 the respondent raised an action in the Court of Session seeking reduction of a decree for payment against him obtained by L Barclay & Company. The following 159

information was provided by the DPCS. On 25 November 1994 the respondent was ordained to find caution and to lodge a bond within 14 days. On 6 December 1994 the time within which to lodge caution was prorogated to 16 December 1994. On

14 December 1994 the respondent's motion for leave to reclaim was refused. The action was sisted. On 22 October 1996 (almost two years later) the sist was recalled and the respondent of new ordained to find caution within four weeks. On 19 October 2012

(some 16 years later) the respondent's motion for leave to reclaim against the interlocutor of 22 October 1996 was refused.

2. Duff v Robertson, Wilkes and Merrick Homes Limited (1995): the Court of Session

[15] On 2 February 1995, the respondent raised an action in the Court of Session seeking delivery of half the share capital of Merrick Homes Limited and interdict. The following further information was provided by the DPCS. On 24 January 1995 interim interdict was granted against the defenders prohibiting them from alienating any land to which the third defenders might be entitled at, or in the vicinity of, Mill Loch, Lochmaben and

Vendace Avenue, Lochmaben. On 13 August 1996 the interim interdict was recalled. On

28 August 1996 defences for the third defenders were allowed to be received late. There has been no further procedure.

3. Duff v Merrick Homes Limited (2002: A1074/02): the Court of Session

[16] In about 2002 the respondent raised an action in the Court of Session seeking inter alia reduction of missives and of a decree dated 31 January 1996. In an opinion dated 160

18 March 2003, Temporary Judge Gordon Reid QC noted that there were wholly inspecific allegations (mainly directed against the former trustee in bankruptcy) of collusion, pressure and threats, corruption, blackmail, fraudulent scheme, a plot, gross fraud, fraudulent misrepresentation, underhand deals, fraud practised on the court, pressure threat and blackmail, corrupt administration and gross fraud, fraudulent activities, fraudulent statements, corrupt administration of the respondent's estates and other similar allegations. The judge dismissed the action as irrelevant and lacking in specification. The respondent prepared grounds of appeal alleging inter alia prejudice and bias on the part of the judge. The following further information was provided by the

DPCS. On 8 April 2003 the respondent marked a reclaiming motion. On 25 November

2003 the case was appointed to the Summar Roll. On 7 January 2004 the Summar Roll fixed for that date was discharged, and the respondent was ordered to lodge an appendix by 25 February 2004. On 23 April 2004 the case came before the Inner House on the Summar Roll. The reclaiming motion was refused, and the interlocutor of

18 March 2003 adhered to.

161

4. Duff v Colin Boyd QC (2006: A3553/06): Dumfries Sheriff Court and the Court of Session

[17] In 2006 the respondent raised an action of lawburrows in Dumfries Sheriff Court against Colin Boyd QC as Lord Advocate. The respondent averred that there was a criminal conspiracy between Dumfries police and members of the legal profession in

Dumfries to make him bankrupt in order to steal his properties. Police reports had been faked, evidence distorted, and reports falsified. The defender was averred to have incited the procurator fiscal at Dumfries to pervert the course of justice by saying that there was no evidence to support the respondent's complaints against the Dumfries police and other individuals. The defender had perverted the course of justice and acted oppressively by aiding and abetting others to fake reports and spread lies about the respondent, so that he could not get justice or recover his property or damages. The defender was averred to be continuing his vendetta against the respondent to stop him obtaining justice. On 14 September 2006 the action was dismissed as incompetent. On

26 January 2007 an appeal to Sheriff Principal E F Bowen QC was refused. On 8 May

2007 an appeal to the Court of Session was dismissed as incompetent. The respondent was found liable in expenses. To date, no expenses have been paid.

5. Duff v Strang (2006: B347/06, XJ845/07): Dumfries Sheriff Court and the High Court of

Justiciary

[18] On 29 November 2006 the respondent raised an action of lawburrows in Dumfries

Sheriff Court against the Chief Constable of Dumfries and Galloway Constabulary

(David Strang). The respondent averred that he had been made bankrupt illegally in 162

1976. He referred to fabricated police reports and evidence, police officers perverting the course of justice and defrauding the respondent, a cover-up about the theft of his car, and a vendetta against him to stop him obtaining justice. On 2 March 2007 Sheriff Smith dismissed the action as incompetent and irrelevant. The respondent appealed to the

High Court of Justiciary by Stated Case. The Stated Case was dismissed as incompetent and (obiter) irrelevant: 2008 JC 251. Expenses were awarded against the respondent.

These remained unpaid, and as a result the respondent was again sequestrated.

6. Duff v Shearer (2008: A342/08, XA167/09): Dumfries Sheriff Court and the Court of Session

[19] On 1 September 2008 the respondent raised an action in Dumfries Sheriff Court against the Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer).

He sought damages of £20 million and interdict. He averred that he had been made bankrupt illegally in 1976; solicitors had conspired to defraud him of his money and lands; police officers had faked reports and perverted the course of justice. He later added adjustments referring to his trustee in sequestration as a "well known fraudster" who had conspired with Dumfries police to bring fabricated charges against the respondent and his ex-wife. The respondent also averred that the Chief Constable's legal team had deceived the court, lied, misled judges in the Court of Session and conspired with clerks of court. On 6 February 2009 Sheriff Johnston refused the respondent's motion to have the Chief Constable's solicitor found guilty of contempt of court for trying to mislead the court. On 5 June 2009 Sheriff Jamieson dismissed the action as irrelevant and lacking in specification. The respondent appealed to the sheriff principal 163

alleging bias on the part of the sheriff and false information provided by the lawyer acting for the Chief Constable. On 2 October 2009 Sheriff Principal B A Lockhart refused the appeal. The respondent appealed to the Court of Session. He was required to lodge grounds of appeal within 28 days of 13 November 2009. The petitioner avers that he failed to do so. However the respondent avers that "grounds of appeal [were] lodged and [are] still pending" (see the respondent's adjusted answers number 8 of process, foot of page 12). By contrast, a Note delivered by Lord Menzies dated 13 November 2012

(XA167/09) states:

"[1] In the action, appeal number XA167/09, the last interlocutor of this court was pronounced on 13 November 2009, exactly three years ago today. In terms of that interlocutor Mr Duff was ordained to lodge grounds of appeal within 28 days. Nothing has happened since. No grounds of appeal have been tendered. Mr Duff has given no satisfactory explanation for the failure to progress this appeal by the lodging of grounds of appeal. He attributed his failure to do so to a mix up.

[2] An appellant has a duty to make progress in an appeal and the court will not permit appeals in which no progress is being made to drag on indefinitely. After the lapse of a period of three years we are in no doubt that this appeal should be refused ..."

The following further information was provided by the DPCS. The court then dismissed the appeal in respect that the respondent had failed to obtemper the interlocutor of

13 November 2009.

7. Duff v Forbes (2008: A82/08): Dumfries Sheriff Court and the Court of Session

[20] On 6 November 2008 the respondent raised an action in Dumfries Sheriff Court against his former trustee in sequestration. He sought damages of £10 million and 164

interdict. He made averments of a conspiracy involving the former trustee, blackmail and pressure, and incorrect entries in the sederunt book. In a later note, he alleged that the defender's solicitors were deliberately misleading the court, and trying to pervert the course of justice. On 15 July 2009 Sheriff Robb assoilzied the defender from the claim of damages, and dismissed the action so far as seeking interdict. The respondent appealed to the sheriff principal, alleging that the sheriff had acted ultra vires and in a biased way; that he had shouted and was aggressive; and that his conduct made it clear that he would not give a party litigant a fair hearing. On 11 November 2009 Sheriff Principal C

G McKay refused the appeal. The criticisms of the sheriff were held to be wholly unfounded. The respondent appealed to the Court of Session, but then abandoned his appeal. Expenses were awarded against the respondent but have not been paid.

8. Duff v Forbes (2010: A23/10, XA72/12): Dumfries Sheriff Court and the Court of Session

[21] On 2 February 2010 the respondent raised an action in Dumfries Sheriff Court against his former trustee in sequestration. He sought damages of £15 million and interdict. The basis of the action was similar to that in case number 7 above.

Sheriff Jamieson repelled the defender's plea of res judicata in respect of the damages claim. The defender's appeal to the sheriff principal (Temporary Sheriff Principal C N

Stoddart) was successful and the defender was assoilzied from the crave for damages.

Expenses were awarded against the respondent. Following a hearing on 26 March 2012,

Sheriff Jamieson dismissed the remaining part of the action, observing: 165

"[60] Mr Duff has considerable experience of litigation as a party litigant and ought now to be aware that, at a debate, the court is invited to consider if his pleadings are legally relevant and sufficiently pled to merit the case proceeding to proof; and that an action will be dismissed at debate if 'it must necessarily fail even if all the pursuer's averments are proved': Jamieson v Jamieson 1952 SC (HL) 44 at 50, per Lord Normand. In my opinion the Jamieson test is clearly made out in this case ..."

[22] Expenses were awarded against the respondent. The petitioner avers that respondent is believed to have marked an appeal to the Court of Session, but it is not known what further proceedings (if any) have taken place. The respondent states that

"the Court of Session has given the timetable for the appeal procedure": see his minute of amendment number 22 of process, page 4. The following further information was provided by the DPCS. On 27 April 2012 an appeal was registered in the Court of

Session (XA72/12). On 24 May 2012 the respondent's motion to sist the appeal was refused, and he was ordered to lodge a process and an appeal print within six weeks. On

16 October 2012 at a procedural hearing the court ordained the respondent to lodge caution of £10,000 within 28 days, and found him liable in the expenses of the opposed motion. The procedural hearing was continued to 20 November 2012. On 13 November

2012, the respondent's motion to sist the appeal was refused, and the date of the procedural hearing confirmed. On 20 November 2012, the respondent did not appear, but the court received a letter from him dated 14 November 2012. The court considered that letter, and ultimately refused the appeal in respect of the respondent's failures to appear or to find caution.

9. Duff v Shearer (April 2010: B131/10): Dumfries Sheriff Court 166

[23] On 22 April 2010 the respondent raised an action of lawburrows in Dumfries Sheriff

Court against the Chief Constable of Dumfries and Galloway Constabulary (Patrick

Shearer). The basis of the action was similar to that in case number 5 above. On 5 August

2010, following upon a debate, Sheriff Jamieson dismissed the action as irrelevant. The petitioner avers that the respondent did not appeal. However the respondent states that the sheriff clerk's office was responsible for not having the action sent to the Court of

Session: see his minute of amendment number 22 of process, page 4. The following further information was provided by the DPCS. Dumfries Sheriff Court confirmed that no appeal was marked and that the respondent has been advised accordingly.

10. Duff v Shearer (September 2010: A234/10, XA154/10): Dumfries Sheriff Court and the

Court of Session

[24] On 8 September 2010 the respondent raised a further action in Dumfries Sheriff

Court against the Chief Constable of Dumfries and Galloway Constabulary (Patrick

Shearer) seeking rectification of police reports; an apology; damages of £10 million; and interdict. The circumstances relied upon were similar to those relied upon in case number 6 above. The legal basis of the claim was that police officers had "defamed and discriminated" the respondent. The respondent was ordered to find caution. He did not do so. The respondent states that the cause is back at Dumfries Sheriff Court, and has been sisted. He states further that he will be asking for a review of the £2,000 caution which he describes as "an injustice when the [respondent] has a stateable case": see his minute of amendment number 22 of process, page 5. The following further information 167

was provided by the DPCS. An appeal to the Court of Session was registered on

3 December 2010. On 14 December 2010 the appeal was sisted until 1 February 2011. On

2 June 2012 at a procedural hearing, the respondent's note of argument and appendix were allowed to be received late, and the clerk of court requested a note from the sheriff at Dumfries relating to an interlocutor of 28 October 2010. The appeal was appointed to the Summar Roll for a hearing on 20 October 2011. On 20 October 2011 the respondent's appeal was allowed to the extent of recalling that part of the sheriff's interlocutor of

28 October 2010 reading:

"Deletes as scandalous and irrelevant the pursuer's averments in article 2 of the condescendence except for the words 'These statements are untrue, false, calumnious', and all his averments in article 3 of the condescendence. Deletes for the same reason his third plea-in-law. Dismisses craves 1 and 3 of his initial writ. Quoad ultra, and subject to the requirements of the pursuer to consign £2,000 with the sheriff clerk, allows the action to proceed."

The respondent's appeal to the Court of Session was otherwise refused. The respondent was found liable in expenses, restricted to 50 per cent. On 16 February 2012 the cause was remitted to Dumfries Sheriff Court to proceed as accords. On 22 November 2012 the case was dismissed at Dumfries Sheriff Court. No appeal was marked.

11. Duff v Dumfries and Galloway Council (November 2010: A312/10, XA71/12): Dumfries

Sheriff Court and the Court of Session

[25] On 17 November 2010 the respondent raised an action in Dumfries Sheriff Court against Dumfries and Galloway Council seeking compensation of £324,000 and interdict in relation to a drainage and lighting system constructed by the respondent in the 1970s. 168

The respondent averred that the Council had faked a map about the drainage system, and had misled Scottish Water. On 19 July, 18 August and 7 December 2011

Sheriff Jamieson dismissed various parts of the action as irrelevant and lacking in specification. The respondent is understood to have marked an appeal to the sheriff principal, but the petitioner avers that it is not known what further proceedings (if any) have taken place. The respondent for his part states that the appeal is sisted pending a full hearing at Dumfries Sheriff Court on evidence, and that the respondent is waiting for a date from the sheriff court: see his minute of amendment number 22 of process, page 5. The following further information was provided by the DPCS. On 27 April 2012, an appeal was registered in the Court of Session (XA71/12). On 24 May 2012 the appeal was sisted for three months pending a full hearing in Dumfries Sheriff Court on evidence relevant to the appeal. On 25 September 2012, at a By Order hearing in the

Court of Session, the respondent was ordained to lodge an appeal print within 7 days, and thereafter the Keeper of the Rolls was to issue a timetable. On 13 November 2012 the court refused a motion to dismiss the appeal, and ordained the respondent to find caution of £2,000. On 8 January 2013 a three-judge procedural hearing took place. The respondent did not appear. He had intimated by a faxed letter dated 14 November 2012 that he would not be finding caution, nor would he be appearing at the procedural hearing. The court dismissed the appeal in respect that the respondent had failed to obtemper the interlocutor of 13 November 2012.

169

12. Duff v Shearer (February 2011: B56/11, XA48/11): Dumfries Sheriff Court and the Court of

Session

[26] On 15 February 2011 the respondent raised an action of lawburrows in Dumfries

Sheriff Court against the Chief Constable of Dumfries and Galloway Constabulary

(Patrick Shearer). The basis of the action was similar to that in case number 9 above.

Following a debate on 31 March 2011, Sheriff Jamieson dismissed the action as irrelevant. The respondent appealed to the Court of Session on the basis that the sheriff was not entitled to determine the matter without hearing evidence. On 18 May 2012 the appeal was refused for the reasons given by the Inner House in their judgment of that date (reported 2012 SLT 975). The respondent states in his minute of amendment number 22 of process pages 5 and 6:

" ...[the case] was appealed to the Supreme Court in London ... the respondent was told 'your application to have waived the requirements that two counsel certify that it is reasonable to pursue the appeal has been considered by the panel of three justices concluded [sic] that it is not a case in which dispensation of the requirements should be granted. The points mentioned in the grounds of appeal are not arguable. The decision as to which of the judges should give the opinion in the Inner House was a matter of procedure, which is not open for review in this court' ..."

[27] The respondent advised this court that he has appealed the case to the European

Court of Human Rights in Strasbourg: see paragraph [2] above.

13. Duff v Shearer (September 2011: B345/11, XA139/11): Dumfries Sheriff Court and the Court of Session 170

[28] On 30 September 2011 the respondent raised an action in Dumfries Sheriff Court against the Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer).

He sought suspension of a charge for payment served on him in respect of the non- payment of the expenses awarded in case number 9 above. On 13 October 2011

Sheriff Jamieson dismissed the action as incompetent. The respondent appealed to the sheriff principal. On 24 November 2011 Sheriff Principal B A Lockhart refused the appeal and awarded expenses against the respondent. In his minute of amendment number 22 of process at page 6, the respondent states that he "has a cause sisted at the

Court of Session". The following further information was provided by the DPCS. On

19 December 2011 the respondent's appeal was registered in the Court of Session

(XA139/11). On 21 December 2011 the appeal was sisted for two months pending the

Summar Roll hearing in appeal XA48/11 (paragraph [26] above). On 27 July 2012 there was no appearance on behalf of the defender, and the appeal was sisted until 24 August

2012. On 25 September 2012 the respondent was ordered to lodge an appeal print within seven days, and the Keeper was thereafter to issue a timetable. On 13 November 2012 the court refused a motion to dismiss the appeal, and ordered the respondent to find caution of £2,000. On 8 January 2013 a three-judge procedural hearing took place. The respondent did not appear. He had intimated by a faxed letter dated 14 November 2012 that he would not be finding caution, nor would he be appearing at the procedural hearing. The court dismissed the appeal in respect that the respondent had failed to obtemper the interlocutor of 13 November 2012.

171

14. Duff v The Council of the Law Society (July 2012)

[29] A fourth inventory of productions for the petitioner contained an initial writ lodged on 4 July 2012 in which the respondent seeks compensation of £30 million from the

Council of the Law Society, and interdict. The respondent refers to complaints which he made about certain solicitors, and avers that the Law Society failed to take appropriate action. On 8 August 2012, Sheriff McColl refused to warrant the writ.

15. Duff v The Scottish Ministers (November 2012)

[30] The fourth inventory also contained an initial writ in which the respondent seeks compensation of £30 million from the Scottish Ministers. The respondent refers to his illegal sequestration and abuses of process, to his complaints to the Scottish executive, and to the latter's failure to respond. By letter to the respondent dated 13 November

2012 it is explained that Sheriff McColl refused to warrant the writ or to be addressed on it.

The respondent's adjusted answers, fax, minute of amendment, and manuscript letter

[31] As noted in paragraph [8] above, the respondent lodged in the current process

(P746/10) adjusted answers number 8 of process, a 3-page fax dated 26 January 2012, and a minute of amendment number 22 of process. He also sent the Court of Session a manuscript letter dated 29 November 2012. 172

[32] In these documents, the respondent denies raising vexatious proceedings. He explains that he had reasonable grounds for raising the actions, and also documentary evidence to support them. His cases were dismissed as a result of a conspiracy between the Lord Advocate, the Dumfries police, solicitors, and court officials (pages 14 and 15 of the adjusted answers number 8 of process). The present petition was false. It had been raised for only one reason, namely to stop the respondent getting access to justice

(page 19). Public money had been wasted protecting local solicitors and corrupt police officers (page 20). Fake police reports had been circulated to the Law Society, the Crown

Office, and the devolved administration of the Scottish executive, so that no investigations would be carried out (page 20).

[33] The respondent also reiterated inter alia that his sequestration in 1976 was illegal.

Any trading (and debts) had been the company's, not the respondent's. His trustee in sequestration had mismanaged his affairs. The respondent had been defrauded of his estate. The respondent made criticisms of the lawyers involved. He stated that judges had been misled, and had also erred. He gave considerable detail in relation to certain litigations.

[34] In his manuscript letter dated 29 November 2012 the respondent pointed out that his cases had come before many sheriffs and judges who had not categorised them as

"vexatious". He referred to the hearing in Duff v Dumfries and Galloway Council (XA71/12) on 13 November 2012 before three judges chaired by Lord Menzies. Despite the submissions made by counsel for the Council, the court had ruled that the action should not be dismissed as an abuse of process. (Lord Menzies' Note dated 13 November 2012 173

confirms that the court was not satisfied in the circumstances that "the high test for abuse of process has been met"; however the court ordered the respondent to find caution as "[the respondent's] case ... if stateable at all, cannot be described as strong", adding "He has failed to obtemper decrees for payment in other causes which may indicate that he is unable to meet current obligations. Indeed he has recently been sequestrated."

Discussion

The Vexatious Actions (Scotland) Act 1898

[35] Section 1 of the Vexatious Actions (Scotland) Act 1898 provides:

"Power of Court of Session to prohibit institution of action without leave It shall be lawful for the Lord Advocate to apply to either Division of the Inner House of the Court of Session for an order under this Act, and if he satisfies the Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court, and whether against the same person or against different persons, the Court may order that no legal proceedings shall be instituted by that person in the Court of Session or any other court unless he obtains the leave of a judge sitting in the Outer House on the Bills in the Court of Session, having satisfied the judge that such legal proceeding is not vexatious, and that there is prima facie ground for such proceeding ..."

[36] As noted in Lord Advocate v McNamara 2009 SC 598 paragraphs [35] et seq, the petitioner has to establish the following matters:

(1) Proceedings instituted habitually and persistently

[37] In Attorney General v Barker [2000] 2 FLR 1, at paragraph 22, it was said that: 174

" ... [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."

(2) Proceedings instituted without any reasonable ground

[38] As was explained in Lord Advocate v McNamara cit sup:

"[36] ... The court can find that proceedings were instituted without any reasonable ground on the basis of opinions expressed by the judges in the cases in question which warrant that conclusion. Even in the absence of such expressions of opinion, that conclusion may be warranted by the surrounding circumstances ..."

(3) The whole circumstances of the litigations

[39] In Lord Advocate v McNamara cit sup, it was noted in paragraph [40] that:

" ... the court has a discretion to make an order under [section 1 of the 1898 Act], but is not obliged to do so. Whether, where the conditions are met, the court will exercise its discretion to make an order will depend on the court's assessment of whether it is appropriate to do so in the interests of justice. In exercising its discretion, the court is entitled to have regard to any matter which is relevant to that assessment, including the conduct of the litigant in other proceedings besides those which form the basis of the court's jurisdiction to make the order. The prima facie right of all citizens to invoke the jurisdiction of the civil courts, and the availability of other powers to deal with abuses of process, will be relevant considerations. So too will be the need to protect members of the public, and the resources of the court itself, against further abuses of process. The extent to which vexatious litigation drains the resources of the court, in particular, is a matter of considerable concern. In that regard, the court in HM Advocate v Frost (paragraph 44) expressed its agreement with what had been said by Staughton J in Attorney General v Jones (page 865), where he explained why 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. He said that there were at least two reasons: 'First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; secondly the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances, and should not be squandered on those who do not.' As has been said in other cases, it is necessary to look at the whole picture, having regard to the cumulative effect of the litigant's activities, both on the other persons 175

involved in the proceedings and on the administration of justice generally. It also has to be borne in mind that an order under the section operates not as a bar to the bringing of further proceedings, but as a filter."

The respondent's litigations

Habitually and persistently

[40] We refer to the nature and number of actions raised by the respondent during the period 2002 to date as outlined in paragraphs [10] to [30] above. In several instances, where an action was dismissed or an appeal refused, the respondent raised a similar action against the same defender. We are satisfied that the respondent has raised actions in a habitual and persistent manner from 2002 to date.

Without reasonable grounds

[41] On the information available to us, none of the actions raised by the respondent has resulted in the respondent being granted the remedies he sought. The opinions of the courts involved have been almost universally unfavourable to him. In Duff v Merrick

Homes Limited (2002, A1074/02 case number 3 above) the temporary judge observed:

" [4] ... [Mr Duff] was unable to identify the parts in the pleadings which contained the essentials of his case whatever that case might be ... [10] In my opinion, Mr Duff's pleadings are ... generally incomprehensible. It is impossible to identify the crucial facts upon which the remedies he seeks are based. The real substance of the facts making up the case against Merrick cannot be identified. Where Mr Duff's pleadings mention [collusion, pressure and threats, corruption, blackmail, fraudulent scheme, a plot by the trustee and third parties, gross fraud, fraudulent misrepresentation, underhand deals, fraud practised on the court, pressure threat and blackmail, corrupt administration and gross fraud, fraudulent activities, fraudulent statements] ...and other allegations in a similar vein, no or no adequate specification whatsoever is given ..."

176

[42] In Duff v Colin Boyd QC (2006, A3553/06 case number 4 above) the sheriff principal commented:

"3. ... What [Mr Duff] has argued is that this is not an action brought against the Lord Advocate but against Mr Boyd personally. He has gone so far as to suggest that the defender's representation by solicitors and counsel instructed by the Scottish Executive constitutes an abuse of public funds.

4. The proposition that this is not a case directed against the Lord Advocate is in my view untenable ..."

[43] In Duff v Strang (2006, B347/06, XJ845/07 case number 5 above) the sheriff noted the respondent's contentions that he was illegally made bankrupt in 1976, that police officers had fabricated reports and perverted the course of justice, that they were involved in defrauding the respondent out of his lands, house and money by conspiring with a former solicitor, that there had been a cover-up and a continuing vendetta, and said inter alia:

" ... (page 5) [Mr Duff] advanced no argument in respect of the fundamental points made in respect of the competency and relevancy of the action ... (page 6) it becomes plain that [Mr Duff's] averments are not ones which could ever found a competent application for the remedy of lawburrows. And even if proved by evidence the action would necessarily fail. As such it is neither competent nor relevant ..."

[44] In Duff v Shearer (2008, A342/08, XA167/09 case number 6 above) the sheriff recorded the averment that the respondent was illegally made bankrupt in 1976, together with averments of a conspiracy to defraud him of his money and lands, faked police reports, perverting the course of justice, fabricated charges, deceiving the court, and a conspiracy of solicitors and clerks of court, and concluded: 177

"[82] The result is, both in relation to the damages claim and the crave for interdict, [Mr Duff] has not set out a relevant case, or made sufficient averments, so as to be entitled [to] the remedies which he craves against the defender. His claims for damages and interdict, as laid, are in my view fundamentally misconceived and thus fundamentally irrelevant ..."

[45] The sheriff principal noted at paragraph 23 of his judgment dated 2 October 2009:

" ... The action ... remains fundamentally irrelevant".

[46] In Duff v Forbes (2008, A82/08 case number 7 above) the sheriff commented inter alia:

" 53 ... The failures in the pleadings after a previous opportunity to amend remain vast. The claim spans over thirty years. Allegations of fraud, blackmail and conspiracy are scattered throughout the pleadings but the majority are without any specification. The pleadings lack coherence ... "

[47] The sheriff principal observed:

"[19] The [respondent's] averments are ... wholly unfocused when looked at to determine how they relate to the sum pursued or the wrongful act or acts ... [26] ... Mr Duff has wholly misapprehended the purpose of a debate and seems to think all he has to do is make a series of allegations to entitle him to a proof. Perhaps not surprisingly he does not seem to understand the concept of relevancy and that a relevant case has to be made out before a proof will be allowed unless there are some facts that need to be established before the issue of relevancy can be determined ..."

[48] In Duff v Forbes (2010, A23/10, XA72/12 case number 8 above) following a hearing on

26 March 2012, the sheriff said:

"In my opinion, Mr Duff's pleadings in this case were woefully inadequate. They did not support his crave for interdict. His pleadings were diffuse and amounted to complaints against a number of individuals and organisations, all completed, and some considerable time ago. They failed to identify any legal wrong or reasonable apprehension any such wrong was being, or would be, committed by the defender ..."

178

[49] In Duff v Shearer (April 2010, B131/10 case number 9 above) the sheriff noted at paragraph [64]:

" ... [Mr Duff's] averments in this case fall far short of what is necessary to plead a relevant case of lawburrows based on harm from defamation and accordingly I am persuaded ... that the pursuer's application for lawburrows is irrelevant for that reason ..."

[50] In Duff v Dumfries and Galloway Council (2010, A 312/10, XA71/12 case number 11 above), the sheriff said:

"... I have considered [Mr Duff's] claim as carefully as I am able but I cannot discern any rational basis in law for it ... Mr Duff claims the right to compensation; it is for him to show it exists and to aver the legal basis for it so the defenders have a fair opportunity to investigate and respond to such a claim ... Since he has plainly failed to do this, it follows his averments are irrelevant, failing which lacking in specification."

[51] In Duff v Shearer (February 2011, B56/11, XA48/11 case number 12 above) the sheriff observed:

"[128] Mr Duff clearly feels aggrieved by what he perceives to be an injustice that materially affected the course of his and his family's whole life since 1976. But his action for lawburrows on the basis of the defender not investigating his complaints and allegedly faking reports is fundamentally misconceived ...

[131] ... [Mr Duff] has not pled a relevant case for lawburrows ..."

[52] The Inner House refused the respondent's appeal, and the Supreme Court concluded that:

" ... The points mentioned in the [respondent's] grounds of appeal are not arguable."

179

[53] In Duff v Shearer (September 2011, B345/11, XA139/11 case number 13 above) the sheriff dismissed the action as incompetent, commenting:

"Mr Duff was truly seeking to bring under review my decree finding him liable in expenses in the second lawburrows action ..."

[54] The sheriff principal for his part concluded:

"I have no hesitation in reaching the conclusion that his appeal should be refused."

[55] We have carefully considered the respondent's oral submissions and his writings, including his written pleadings, fax, and manuscript letter. Nevertheless bearing in mind the consistent lack of success on the respondent's part, and the virtual unanimity of view shared by the sheriffs, sheriffs principal, Court of Session judges, and Supreme

Court justices who have dealt with the respondent's cases, we are satisfied that the actions raised by the respondent were raised without reasonable grounds.

The whole circumstances of the actions

[56] As was observed in paragraph [36] of Lord Advocate v McNamara 2009 SC 598:

" ... the court can find that proceedings were instituted without any reasonable ground on the basis of opinions expressed by the judges in the cases in question which warrant that conclusion. Even in the absence of such expressions of opinion, that conclusion may be warranted by the surrounding circumstances ..."

[57] In this petition, the respondent is noted as having raised actions against inter alios the Lord Advocate, the Chief Constable of Dumfries and Galloway Constabulary, a former trustee in sequestration, and a local authority (Dumfries and Galloway Council). 180

In these actions the respondent has made repeated allegations of corruption, fraud, blackmail, pressure, collusion, fabricated police reports, police officers perverting the course of justice, a cover-up, a vendetta against him, and conspiracies. The actions and ensuing appeals have been dismissed and awards of expenses made against the respondent. The respondent's reaction has been to fail to pay any expenses; to leave some actions in a procedural limbo; and in several instances to reactivate old proceedings or to raise another action against the same defender in broadly similar terms as a previously unsuccessful action. Considerable time, funds, and resources have been devoted to dealing with the respondent's wholly unsuccessful actions. In our opinion, the circumstances of the litigations confirm and support the petitioner's contention that the respondent is indeed a vexatious litigant.

Decision

[58] For the reasons given above, we are satisfied that the conditions which the Lord

Advocate requires to establish in terms of section 1 of the Vexatious Actions (Scotland)

Act 1898 have been established. The ultimate disposal is one for our discretion.

Exercising that discretion, we shall in all the circumstances grant the prayer of the petition. The order which we pronounce does not prevent access to the courts

(paragraph [9] of Lord Advocate v McNamara 2009 SC 598) but imposes a sifting mechanism which in the respondent's case is, in our view, entirely justified.

181

182

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2019] CSIH 17 P133/18

Lord Justice Clerk Lord Malcolm Lord Glennie OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the Petition

THE LORD ADVOCATE

Petitioner

for

An order in terms of section 100 of the Courts Reform (Scotland) Act 2014

against

MOHAMMED ASLAM

Respondent

Appellant: Miss Thomson; Scottish Government Legal Directorate Respondent: Party

22 March 2019

Introduction

[1] Section 100 of the Courts Reform (Scotland) Act 2014 provides that, on the application of the Lord Advocate, the Inner House may make a vexatious litigant order. In terms of section 100(2) such an order may have either or both of the following effects:

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“(a) the vexatious litigant may institute civil proceedings only with the permission of a judge of the Outer House,

(b) the vexatious litigant may take a specified step in specified ongoing civil proceedings only with such permission.”

Background

[2] In this petition the Lord Advocate seeks a vexatious litigant order against the respondent by which he would be prevented from (i) raising proceedings in the Court of

Session, Sheriff Court, or any other inferior court, without first obtaining permission to do so from a judge of the Court of Session, in terms of section 101 of the Act; and (ii) appealing any future decision, judgment or interlocutor in certain specified proceedings without such permission.

[3] In 2008 the respondent was sequestrated, apparently for failing to pay council tax. It is clearly the respondent’s belief that the charge upon which his sequestration proceeded was wrongfully obtained. As counsel for the Lord Advocate submitted, this matter has been the trigger for a decade of litigation, largely on the theme that the sequestration was unlawful or improper. The petition contains a long list of proceedings either initiated by the respondent, or in which he has asked the court to make certain orders, and which are said to establish the respondent as a vexatious litigant.

The litigations

[4] The proceedings included:

(i) Initial writ at the instance of the respondent seeking suspension of the charge; dismissed as incompetent, 12 June 2009.

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(ii) Summary application at the instance of the respondent under the Administration of

Justice (Scotland) Act 1972, for recovery of documents relating to his sequestration; dismissed as incompetent, 13 August 2009.

(iii) Action at the instance of the respondent for damages from Glasgow City Council for unlawful diligence; action dismissed as incompetent 2 November 2009; with the comment that even had the remedy sought been competent, the pleadings were hopelessly irrelevant.

The sheriff in his judgment stated that he took the opportunity at some length to explain to the respondent the difficulty in the action, and to point out the processes which might be open to him to seek to set aside the sequestration, including reference to an action of reduction in the Court of Session.

(iv) The decision referred to in para (iii) was appealed to the Sheriff Principal who confirmed the decision of the sheriff, stating that:

“The decree which awarded sequestration of the pursuer’s estate remains valid and must be treated as such by a Sheriff or Sheriff Principal, unless recalled in terms of the statute or reduced or otherwise set aside by the Court of Session. The Sheriff Court could not therefore make an award of damages said to flow from the award of sequestration if the award of sequestration remains in force.” [Para 5]

The appeal was refused (11 May 2010), as was a further appeal to the Court of Session.

(v) A further summary application at the instance of the respondent for recovery of documents, this time raised against his trustee in sequestration ; the application was dismissed as “hopelessly irrelevant”, 4 September 2013.

(vi) Summary application at the instance of the respondent for orders in terms of s 3(7) of

Bankruptcy (Scotland) Act 1985; dismissed as hopelessly irrelevant, 12 October 2012.

(vii) An appeal against the decision referred to at (vi); refused, 25 October 2013.

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(viii) Action of reduction of the decree of sequestration, raised May 2011 in the Court of

Session at the instance of the respondent; procedure roll diet April 2012 discharged at the instance of the respondent for legal aid application; a week prior to a further procedure roll diet, January 2013, counsel moved a minute of amendment changing the action to one of damages, namely in the same format as had been dismissed in the Sheriff Court in

November 2009; a further procedure roll diet was fixed, and the respondent ordered to find caution of £17,000, which he did; a further amendment at the next procedure roll hearing

(June 2013) changed the basis of the action to one based on breach of undertaking. The respondent’s agents withdrew from acting in December 2013. A proof before answer was fixed for January 2015, but on 4 November 2014 the court made a further order for caution of

£20,000. That order was reclaimed unsuccessfully, causing the proof to be discharged. A further attempt to amend was refused. A further order for caution in the sum of £20,000 was made on 24 June 2015, on the basis that standing the reclaiming motion the sum consigned was insufficient. The respondent having refused to obtemper this order, decree of absolvitor was granted, 29 July 2015.

(ix) Reclaiming motion against the decision at (viii); dismissed, it being an insurmountable obstacle that the original decision to order additional caution had been the subject of a prior unsuccessful appeal, 11 October 2016. Permission to appeal to the UKSC was refused by the Court of Session, 23 December 2016, and again by the UKSC 15 February

2018.

(x) Action for damages for negligent administration of the sequestration at the instance of the respondent against his trustee in sequestration, in the sum of £10.5 million. Action raised January 2012 and sisted until February 2017, when the respondent’s 60 page minute of amendment was refused. A revised minute of amendment was refused in September

186 5

2017, and after debate in October of that year the action was dismissed as irrelevant, 17

November 2017.

(xi) Summary application at the instance of the respondent seeking recall of sequestration; first order refused 5 December 2017, the application being incompetent through being out of time.

(xii) Associated with the summary application referred to at (xi), was a further application for disclosure of documents, warrant refused as incompetent, 5 December 2017.

(xiii) Appeal against the decisions at (x) and (xi), dismissed as incompetent, 8 March 2018.

The Sheriff Appeal Court commented that any further application for recall was likely to fail for the same reasons.

(xiv) Summary application for recall of sequestration in which again a warrant was refused for the same reasons as given on 5 December 2017, and upheld by the Sheriff Appeal

Court in March 2018, with the warning noted at para (xiii).

(xv) Appeal against the decision at (xiv); refused for want of insistence, 21 June 2018.

(xvi) Action for damages at the instance of the respondent against the Royal Bank of

Scotland, which had called up securities over certain properties owned by the respondent.

In the pleadings he averred collusion between the Bank, the Council and the trustee in sequestration with the intention of damaging the respondent’s business or committing fraud. Action dismissed as irrelevant, 17 October 2017. Appeal to the Sheriff Appeal Court refused 18 January 2018. Permission to appeal to the Court of Session refused 27 June 2018.

The submissions for the petitioner

[5] In support of the proposition that the respondent has habitually and persistently instituted vexatious legal proceedings and made vexatious applications to the court without

187 6

any reasonable ground for doing so, counsel for the petitioner submitted that there were certain themes which could be discerned from the various litigations or applications:

1. None of the actions raised, applications made or appeals taken by the respondent has been successful. They have all had related subject matter but have been refused as incompetent or irrelevant.

2. Repeated awards of expenses have been made against the respondent, some on the agent and client scale. No awards of expenses made against the respondent in favour of

Glasgow City Council have been satisfied.

3. The respondent has demonstrated a refusal to accept judicial decisions which are unfavourable to him, by repeatedly attempting to re-litigate matters already judicially determined. He has wasted the time and resources of the court on claims which are without merit.

4. The actions or applications have involved allegations of an increasingly scandalous tone, directed towards a widening circle of individuals.

The court should be satisfied that the statutory test has been met, and should exercise its discretion in favour of granting the prayer of the petition.

Submissions for the respondent

[6] It was clear that the respondent was intent on addressing matters relating to the merits of the actions previously litigated, and in laying before the court in full his grievances against Glasgow City Council and others. We refused to allow him to address various productions which related to the merits of the various claims made in the litigations which were the subject of the petition. We declined to view these documents on the basis that they were not relevant to the issue before us. We indicated that it would be of more benefit to the

188 7

respondent to address the decisions in the cases which were listed in the petition and seek to explain to the court why they should not be viewed as vexatious, and without any reasonable grounds; and why the court should not exercise its discretion in making the order sought. The respondent did not do so.

Analysis and decision

[7] The basis upon which such an order may be made is set out in section 101(1) of the

Act, namely where the Inner House is satisfied that the person in question

“... has habitually and persistently, without any reasonable ground for doing so—

(a) instituted vexatious civil proceedings, or

(b) made vexatious applications to the court in the course of civil proceedings (whether or not instituted by the person).”

This test is similar to that which applied under the Vexatious Actions (Scotland) Act 1898, section 1, where the Inner House could make an order on the application of the Lord

Advocate where the court was satisfied that the person in question

“… has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings.”

The primary difference is that the addition of the words in section 101(1)(b) expands the type of proceedings of which cognisance may be taken in determining an application, and the restrictions referred to in Lord Advocate v McNamara 2009 SC 598 do not apply. In our view each and all of the litigations or applications listed at [4] (i) – (xvi) above come within the ambit of section 101.

[8] The characteristics of litigation which could properly be described as ”vexatious” remain the same as those described in McNamara. Giving the opinion of the court,

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Lord Reed (para 3) referred to the observations of Lord Bingham of Cornhill in Attorney

General v Barker [2001] 1 FLR 759, para 19, that:

“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.”

[9] The court (para 33) went on to refer to a passage in Lord Advocate v Cooney 1984

SLT 343 where the hallmarks of vexatious litigation were described:

“[T]he nature of the actions the respondent has raised, the persons he has convened as defenders, his purpose in using or rather abusing the legal processes to carry on a war of attrition, the hopelessness of his actions yet his persistence in pursuing them to the limits which the law allows, and the damaging effects of this conduct on his victims.”

[10] We emphasise the point also made in McNamara (paras 36-37) that it is not enough for an individual to be classed as a vexatious litigant that actions which he has instituted, or applications made, have not succeeded or been abandoned: it is not persistent failure which is the key, rather that the failure in question has been based on there being no merit even to commence the litigation or make the application. The critical finding will be that repeated litigations and applications have failed for reasons of competence, irrelevance and the like.

It is the fact that repeated actions were commenced with there being no reasonable grounds for doing so which can render them vexatious. As the court noted in McNamara (para 36), the conclusion that an individual litigated without any reasonable or good ground for doing so may be founded on the opinions of the judges in the cases in question. An examination of the proceedings and applications enumerated in the petition shows that in the respondent’s case such a conclusion is amply warranted. The majority of the proceedings initiated by the respondent have been dismissed as incompetent. Notwithstanding, he has on several

190 9

occasions simply attempted to re-litigate the cause on the same incompetent basis despite being advised by the court that dismissal would be the result. The observations made by the judges who have determined the proceedings or applications made by the respondent have certain common themes running through them. Dismissing the proceedings referred to at para [4] (iii), Sheriff Baird, describing the pleadings as “florid and verbose” said:

“Article 1 of condescendence sets the tone; it describes the “harmful event” in consequence of which the Appellant and his family suffered consequences, which list includes financial hardship, emotional distress, discrimination, embarrassment and humiliation, and accuses the Respondents of abuse of and exceeding their power, violation of trust, campaigning, ganging up, victimising, prejudice, discrimination, blackmail, harassment, damage to the Appellant’s present and future income, business credit, making false, misleading and fraudulent statements for financial gain, making false oaths and defective sequestration … Not one word of the remaining pleadings attempts to justify any of that claim”. [Paras 13 and 14]

[11] In the application referred to at para [4] (vi), Sheriff Swanson (12 October 2012) noted that:

“[T]he application is hopelessly flawed. It is irrelevant in law in that it fails to address the correct test against which the trustee’s conduct should be measured … The application is wholly lacking in specification in relation to the conduct complained of. The remedies sought in the craves against that background are also lacking in specification and in any event are not those envisaged by the Act.” [Para 63]

[12] In the application referred to at para [4] (v), the same sheriff conducted an examination of the pleadings trying to identify matters of relevance:

“What averments are made in this application as to the substance and basis for the case the pursuer proposes to make? Averments are made that ‘the defender having acted maliciously, fraudulently and abuse of his position of trust as an administrator financial benefit for himself and other in a manner contrary to natural justice a fraud upon the court and fraud on the pursuer and his multimillion pound estate’ … Further on in the pleadings the potential claims are variously described as ‘wrongful diligence or fraud on the court’ and ‘a fraud and extortion on his estate, title and defamation of character assassination’. None of these averments adequately describe the action proposed. The averments range across wrongful diligence, fraud, negligence and defamation without any proper specification of any of these remedies.” [Para 14]

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[13] A decision of the First Division in yet another litigation (at para [4] (ix)) referred to the “protracted and changing procedural meanderings” of the respondent. A description apt to cover many of the respondent’s dealings with the court is given, again by Sheriff

Swanson, in her decision of 17 November 2017 (at para [4] ix):

“[11] Mr Aslam’s submissions were lengthy, rambling and wholly irrelevant to the point at issue … He was afforded two and a half hours of court time and he used that time to re-iterate his grievances with Glasgow City Council, the defender, the defender’s solicitors, the defender’s staff and the sheriff officer who served the charges …

[21] A considerable amount of court time has been taken up with different actions and challenges, many of which replicate earlier actions which have been dismissed. The repeated attempts to raise the same issues again and again show both a lack of understanding of the law and a lack of respect for the court’s decisions.

…

[23] The pleadings are voluminous, repetitious and rambling and in many respects completely incomprehensible … I recognise that there are close similarities between the pleadings which have been lodged by the pursuer over the last nine years.

[30] [I]n Tods Murray v Arakin [2010] CSOH 90 … Lord Woolman dismissed the counterclaim noting that the defenders were seeking to use the action to “air unfounded complaints”. He saw that as a just and proportionate response as to allow it to continue would place an “undue” burden on the court and the pursuers who would require to commit “enormous” resources. Whilst he recognised that all litigation places burden on the parties it is unreasonable to expect parties to shoulder those if the claim is manifestly without substance. I would adopt those remarks and use them to describe the pursuer’s case in this action as an abuse of process, being a case obviously without merit and without support from an expert which is wastefully occupying time and resources.

…

[43] The pursuer’s pleadings are hopelessly irrelevant and fail completely to set out a case in negligence … The pleadings contain many scandalous averments relating to fraudulent practices, bigotry, discrimination, prejudice and malice … The averments are both scandalous and irrelevant and fall to be deleted.

[44] The pursuer is using this action to “air unfounded complaints” which he has made in various forms over the last nine years without success … I have no hesitation in dismissing this action as irrelevant.”

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[14] The respondent’s attitude when decisions have gone against him has frequently been to resort to abuse of the judicial office holders involved. In his opinion (25 October 2013) in the appeal at para [4] (vii) the Sheriff Principal recorded (Para 6) that:

“... previous experience of the appellant has shown that he is singularly unable to refrain from advancing a tirade of abuse directed at the trustee, his solicitor, and also, I regret to say, the court itself. Ultimately, instead of confronting the Sheriff’s approach to the relevancy and specification of the application itself, the appellant’s oral submissions were reduced to allegations of fraud, complicity and criminality on the part of almost anyone associated with the sequestration proceedings taken against him. As it happens, such allegations themselves appear to be wholly lacking in specification.”

[15] In several appeals the sheriffs at first instance are described as acting unfairly, abusing and misusing their positions and failing to carry out the responsibilities of their judicial oaths. One sheriff is said to have failed to take account of an authority, for “ulterior motives”.

[16] The repeated flouting of court orders, and a failure to recognise the effect of decisions of the court in respect of the incompetent nature of certain applications, making repeat attempts of the same kind doomed to failure, are repetitive features of the respondent’s conduct. The bringing of actions on exactly the same basis as one which has been dismissed for want of competence is an example. When ordered, in the Court of

Session action which was appealed to the First Division, to find caution, the Lord Ordinary

(para 17) noted that the respondent:

“made it clear … that he did not have difficulty in putting up the required amount of caution … His position was simply that he was not willing to find caution.”

Repeated awards of expenses against him remain unsatisfied.

[17] In New Zealand, in Attorney General v Collier [2001] NZAR 137, para 32, (referred to with approval in McNamara) the court noted that:

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“Vexatious litigation is frequently accompanied by complex pleadings, a widening circle of defendants as litigation proceeds, frequency of striking out of part or all of the statements of claim, inability to accept unfavourable decisions, escalating extravagant or scandalous claims (frequently involving allegations of conspiracy or fraud) and failure to pursue proceedings once instituted. The authorities cited to us from other jurisdictions demonstrate the consistency with which characteristics such as these are present in vexatious litigation.”

These words might have been written to describe the present respondent.

[18] On the basis of the narrative we have given, and in particular the observations made by the judges in the respective cases, all as quoted above, we have no hesitation in concluding that the requirements of section 101(1) have been established. The only remaining question is whether we should exercise our discretion in the interests of justice to make the order sought. Again, we have no hesitation in doing so. The respondent has had no success in obtaining any of the remedies sought, in each case because the applications were irrelevant or incompetent. In several instances this must have been clear to him at the outset, given that prior applications on the same grounds had been refused as incompetent.

The claims have been directed against an ever increasing circle, and the averments have become progressively more scandalous. The respondent has refused to accept judicial decisions which have gone against him, and has failed to pay awards of expenses. He has point blank refused to lodge caution when ordered to do so. In all the circumstances we are satisfied that it would be appropriate to grant the order sought by the Lord Advocate.

Attorney General v Gayle-Childs, 2020 WL 07062131 (2020) 194

Her Majesty's Attorney General v Leslie Gayle-Childs

No Substantial Judicial Treatment

Court Divisional Court

Judgment Date 3 December 2020 QB-2019-002501

High Court of Justice

[2020] EWHC 3811 (QB), 2020 WL 07062131

Before: Lord Justice Dingemans Mr Justice Martin Spencer

Thursday, 3 December 2020

Representation

Mr J. Carey appeared on behalf of the Applicant. The Respondent Was not present and was not represented.

Judgment

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.

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.

Crown copyright

P906/20

______

In the Court of Session

List of Authorities for the Petitioner in respect of the Single Bills Hearing

In the

PETITION

THE RIGHT HONOURABLE W. JAMES WOLFFE QC, HER MAJESTY’S

ADVOCATE, Crown Office, 25 Chambers Street, Edinburgh, EH1 1LA PETITIONER

for

an order under section 100 of the Courts Reform (Scotland) Act 2014 2021

THE SCOTTISH MINISTERS (Scottish Government Legal Directorate)