- On 14th
May 2003 this court heard and dismissed three applications by Mr Bhamjee for
permission to appeal against an order made by Park J on 27th January
2003 in relation to three actions he had brought: see Bhamjee v Forsdick
[2003] EWCA Civ 799 ("Bhamjee (No 1)"). Two of these were first
appeals, which the court dismissed as being "quite hopeless" (see
paras 19 and 34 of the judgments). The other was a proposed second appeal,
which the court categorised as not getting "within a hundred miles of
identifying an important point of principle or practice or any other compelling
reason why this court should entertain his application" (see paras 20
and 34). The court directed that in the context of the current applications
a three-judge court should be convened in due course to consider whether it
would be appropriate for the court to make any – and if so what – form of
injunction to control Mr Bhamjee’s future activities.
- After this hearing
had been arranged the five barrister respondents themselves applied for an
injunction against Mr Bhamjee along the lines of that approved by this court
in Ebert v Venvil [2000] Ch 484 (see paras 27-28 below). We will consider
that application in paragraphs 54-56 below.
- The background
to the court’s original direction is set out in paragraphs 22 to 31 of the
judgment in Bhamjee (No 1). In short, the courts are facing very serious contemporary
problems created by the activities of litigants like Mr Bhamjee who are bombarding
them with applications which have no merit at all. Many of these litigants
have no fees disincentive because they automatically qualify for fees exemption.
The problem created by these hopeless applications is not only a serious financial
one, for the reasons set out in paragraph 25 of the judgment in Bhamjee (No
1). It is also that the court is having to divert the skilled attention that
ought to be paid to cases of real merit which warrant early hearings to cases
which have no merit at all. A further problem is created by the fact that
these litigants are often without the means to pay any costs orders made against
them, and the parties in whose favour such costs orders are made are disinclined
to throw good money after bad by making them bankrupt, particularly as the
vexatious conduct may spill over into the bankruptcy proceedings themselves.
- We must stress
that in many, if not most, of these cases the litigant in question has been
seriously hurt by something that has happened to him in the past. He feels
that he has been unfairly treated, and he cannot understand it when the courts
are unwilling to give him the redress he seeks. Judges must, as always, listen
to his case carefully and be astute to see whether there is any point of legal
merit in what he is saying to them. And if they are unable to help him, they
must give their reasons clearly, in language he will understand. In most cases,
particularly after an unsuccessful appeal has been handled in the same way,
that will be the end of the matter so far as the courts are concerned, even
if the litigant’s sense of unfair treatment will often linger on. But in a
tiny minority of cases he will not take "no" for an answer. He may
start collateral litigation about the same subject matter. He may sue the
judge. He may sue the lawyers on the other side. He may bombard the court
in the same case with further applications and appeals. He may sue the Lord
Chancellor, or the Home Secretary, or some other public authority whom he
thinks may be legally liable for his misfortune. The recital of the facts
in Bhamjee (No 1) contains a few of these features. It is with this very small
category of litigants that this judgment is concerned.
- This case is
an important one because, when viewed from the perspective of its effect on
the Court of Appeal alone, the nuisance which these activities represent for
the judges, lawyers and staff of this court does not directly impinge on the
other parties to the litigation in question. In Mr Bhamjee’s case, for instance,
the reason is that in each of the seven unmeritorious applications he has
made to the court in the last three years the court has refused to grant him
permission to appeal, so that the proposed respondents have not been "vexed"
by having to incur the expense of responding to a hopeless appeal.
- This is the
result of the significant changes in the "permission to appeal"
requirements that have been made in recent years, culminating in the enactment
of sections 54 and 55 of the Access to Justice Act 1999 and the implementation
(on 2nd May 2000) of CPR 52.3(1) and 52.13. The effect of these
changes has been to put a significant new burden on the lawyers and staff
of the Civil Appeals Office who have to ensure that the litigant’s bundles
of papers are all in order for a permission application. In addition, a judge
of the court has to set aside over an hour of his time in considering the
papers, conducting a short hearing in court, and giving a brief reasoned judgment
for dismissing an application which is devoid of any merit. The same considerations
apply to judicial review applications in the Administrative Court, to which
Mr Bhamjee has made a number of applications in the last two years, although
in that jurisdiction there is a slightly greater encouragement to respondents
to take part in the proceedings themselves at the permission stage (see CPR
54.8 and 54.9).
2. Vexatious
litigation
- 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 O18 R19(1)(b) with CPR 3.4(2)). In Attorney-General
v Barker [2000] 1 FLR 759 Lord Bingham CJ, with whom Klevan J agreed,
said (at 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."
- In recent years
the courts have become more conscious of the extent to which vexatious litigation
represents a drain on the resources of the court itself, which of necessity
are not infinite. There is a trace of this in the judgment of Staughton LJ
in Attorney-General v Jones [1990] 1 WLR 859, 865C, when 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."
- In Attorney-General
v Ebert [2000] EWHC Admin 286 at [50] Laws LJ articulated this anxiety
in the following terms:
"Mr
Ebert’s vexatious proceedings have … been very damaging to the public interest;
quite aside from the oppression they have inflicted on his adversaries. …
The real vice here, apart from the vexing of Mr Ebert’s opponents, is that
scarce and valuable judicial resources have been extravagantly wasted on barren
and misconceived litigation, to the detriment of other litigants with real
cases to try."
Silber
J, concurring, referred (at para 61) to "a totally unjustified use of
judicial time".
- Hopeless applications
for permission to apply for judicial review or for permission to appeal have
in the past featured among the matters relied on by the Attorney-General when
seeking a civil proceedings order under section 42 of the Supreme Court Act
1981. This appears, however, to be the first occasion on which a court has
had to consider whether the totally unmeritorious waste of the resources of
a court (whether in terms of staff, lawyer or judge time or in the expense
involved in procuring necessary transcripts at public expense for a litigant
without means) is itself sufficient to justify the granting of some form of
injunctive relief. In order to address this question it is necessary to go
back to first principles, both as to the inherent power of a court to protect
its processes from abuse, and as to its ability, absent statutory authority
or any explicit authority granted by the rules, to place fetters on a litigant’s
ability to access the court in the event that he has abused the court’s process.
3. A court’s
inherent powers
- The power to
protect its processes from abuse is vested in every court. The starting point
is the judgment of Baron Alderson in Cocker v Tempest (1840-41) 7 M&W
501:
"[T]he
power of each court over its own process is unlimited; it is a power incident
to all courts, inferior as well as superior; were it not so, the court would
be obliged to sit still and see its own process abused for the purpose of
injustice. The exercise of the power is certainly a matter for the most careful
discretion."
- Clear modern
restatements of the principle are to be found in the extracts from the speeches
of Lord Morris of Borth-y-Gest in Connelly v DPP [1964] AC 1254, 1301
and Lord Diplock in Bremer Vulkan Schiffbau und Maschinenfabrik v South
India Shipping Corporation Ltd [1981] AC 909, 999 which Lord Woolf CJ
quoted in Taylor v Lawrence [2002] EWCA Civ 90 at [52] – [53]; [2002]
3 WLR 640. In the former Lord Morris said that a court must enjoy the powers
necessary to enable it to act effectively within its particular jurisdiction
in order, among other things, to suppress any abuses of its process. In the
latter Lord Diplock said that it would be conducive to legal clarity if the
use of the two expressions, the inherent power and the inherent jurisdiction
of the court, was confined to the doing by the court of acts which it needs
must have power to do in order to maintain its character as a court of justice.
The following year, in Hunter v Chief Constable of West Midland Police
[1982] AC 529, 536, Lord Diplock said that the circumstances in which abuse
of process can arise are very varied, and that it would be most unwise to
say anything that might be taken as limiting to fixed categories the kinds
of circumstances in which the court has a duty to exercise this salutary power.
- In AB &
Others v John Wyeth & Brother Ltd [1997] 8 Med LR 57, 70 Brooke LJ
drew three themes from a number of authorities on this topic. He said:
"The
first is that the court has an inherent jurisdiction to step in and prevent
its process being abused for the purpose of injustice, or in order to maintain
its character as a court of justice. The second is that the court should be
very slow to exercise this summary power (see also Metropolitan Bank Ltd
v Pooley (1885) 10 App Cas 210, per Lord Blackburn at p 221: ‘it should
not be lightly done’). The third is that the category of case in which the
court should be willing to exercise this power is almost by definition never
closed."
- In Ebert
v Venvil [2000] Ch 484 Lord Woolf MR showed at pp 495-496A how even the
familiar statutory jurisdiction over vexatious litigants, which first saw
the light of day in the Vexatious Actions Act 1896, developed out of the court’s
earlier use of its inherent jurisdiction to control the conduct of such litigants.
A reported example can be seen in In re Marie Anne Davies (1888) 21
QBD 241. In more recent years there have been a number of occasions, set out
in the judgment of Brooke LJ in Attorney-General v Ebert [2001] EWHC
Admin 695 at [30] – [32]; [2002] 2 All ER 789, in which the court has had
recourse to its inherent jurisdiction when controlling the activities of litigants
who have abused or attacked court staff, generally wasted the time of court
staff, or misbehaved in court.
- The court, therefore,
has power to take appropriate action whenever it sees that its functions as
a court of justice are being abused. The advent of the Civil Procedure Rules
makes the nature of those functions more transparent. A court’s overriding
objective is to deal with cases justly. This means, among other things, dealing
with cases expeditiously and allotting to them an appropriate share of its
resources (while taking into account the need to allot resources to other
cases). This objective is thwarted and the process of the court abused if
litigants bombard the court with hopeless applications. They thereby divert
the court’s resources from dealing with meritorious disputes, delay the handling
of those disputes, and waste skilled and scarce resources on matters totally
devoid of any merit. In Chapter 9 of the report of the Review of the Court
of Appeal (Civil Division) (September 1997), in a passage referring to the
activities of litigants in person, the authors of the report say:
"Groundless
appeals should not be brought or should be eliminated from the system at the
earliest possible stage. Such appeals build up unrealistic expectations on
the part of the appellant, are unfair to the respondent, cost all the parties
money, and waste the time of the Court of Appeal."
4. Protective
measures: (i) Strasbourg jurisprudence
- This court,
therefore, like any court, has an inherent jurisdiction to protect its processes
from abuses of this kind. The next question is to determine what measures
are appropriate for this purpose. 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 UK (A/18) 1 EHRR 524 at paras 36 and 38-39; Ashingdane
v UK (A/93) (1985) 7 EHRR 528 at para 57; and Tolstoy-Miloslavsky v
UK (A/323) (1995) 20 EHRR 442 at 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.
- In H v UK
(1985) 45 D&R 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 the court is necessary in the interests of
the proper administration of justice and must therefore be regarded as a legitimate
aim."
- In Ebert
v Venvil Lord Woolf MR said at p 497G-H:
"[ECHR]
Article 6 does no more than reflect the approach of the common law indicated
by Laws J in R v Lord Chancellor ex p Witham [1998] QB 575. As long
as the inherent power is exercised only where it is appropriate for it to
be exercised, no contravention of article 6 or common law principle is involved."
- Over the last
100 years the English civil courts have traditionally had two weapons in their
armoury for the purpose of protecting their processes from the abuse which
vexatious litigation represents, and it is worth examining the salient features
of each of these weapons in turn.
5. Protective
measures: (ii) Civil proceedings orders
- The first is
a civil proceedings order made under section 42 of the Supreme Court Act 1981
("a section 42 order"). It has the following features:
(i) An
application for an order may only be made on the authority of the Attorney-General
(or the Solicitor-General acting on his behalf);
(ii) An
order may only be made by a Divisional Court of the Queen’s Bench Division;
(iii) It
is necessary to show not only that the person in question has instituted civil
proceedings or made applications in civil proceedings which can properly be
stigmatised as "vexatious". It must also be shown that he has acted
in one or other of these ways "habitually and persistently and without
any reasonable ground";
(iv) An
order will remain in force indefinitely unless it provides that it is to cease
to have effect at the end of a specified period. (In Attorney-General v
Covey; Attorney-General v Matthews [2001] EWCA Civ 254 at [64]
Lord Woolf CJ said that the court always has a jurisdiction to vary orders
which have been made in the light of entirely new conditions);
(v) A
copy of the order is published in the London Gazette;
(vi) Once
an order is made, the vexatious litigant may not institute or continue or
make an application in any civil proceedings unless a High Court judge 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. There is an oral hearing before the judge for this purpose
unless the judge grants permission without a hearing or considers that the
application is a substantial repetition of one which has already been refused;
(vii) Although
the original civil proceedings order is subject to appeal (if permission to
appeal is granted) the decisions of a High Court judge under (vi) above are
not;
(viii) Once
the Divisional Court has made a civil proceedings order, the order regulates
the litigant’s right of access not only to the High Court but also to the
Court of Appeal and the county court.
We
derive these propositions from section 42 of the Supreme Court Act 1981 ("the
1981 Act"); section 1 of the Law Officers Act 1997; RSC O95 R15(1); and
the Practice Direction to CPR 3.4, para 5.
- Long before
the courts of this country began to study the effect of ECHR jurisprudence
the House of Lords made it clear that the purpose of what was then section
51 of the Supreme Court of Judicature (Consolidation) Act 1925, as amended
by section 1 of the Supreme Court of Judicature (Amendment) Act 1959, was
not to interfere with a substantive right to bring or continue proceedings
which were an abuse of the process of the court, because no such right existed.
In Attorney-General v Vernazza [1960] AC 965 Lord Denning made this
clear at p 977:
"The
courts of this country have an inherent power to ‘prevent the abuse of legal
machinery which would occur, if for no possible benefit the defendants are
to be dragged through litigation which must be long and expensive’, see Willis
v Earl Beauchamp (1886) 11 PD 59, 63 by Bowen LJ; and when the courts
of this country exercise this power, they are not depriving a man of a vested
right. They are only exercising a control over their own procedure. No man,
let alone a vexatious litigant, has a vested right to bring or continue proceedings
which are an abuse of the process of the court."
- In Attorney-General
v Barker [2000] 1 FLR 759 at para 22 Lord Bingham CJ gave this explanation
of the words "habitually and persistently" in section 42(1) of the
1981 Act:
"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 revisiting
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
be 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."
- In Attorney-General
v Matthews, after quoting this passage, Lord Woolf CJ said (at para 61):
"…
[In] deciding whether the conditions set out in section 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."
- A section 42
order has been described as a draconian order. It covers all the litigation
and all the applications a vexatious litigant may wish to bring, and if a
High Court judge refuses permission in relation to any attempt the litigant
may wish to make to bring a matter to the attention of a court that is the
end of the matter. It involves the publication of the litigant’s name on a
list which receives widespread circulation, and although some recent orders
have been made for a fixed period of time, by January 2000 only one ten-year
order and one 15-year order had fallen into this category (see Attorney-General
v Ebert (COT 7th July 2000) per Silber J at paras 55-57). It
is therefore a form of relief which has a long term effect.
6. Protective
measures: (iii) Grepe v Loam orders
- In Ebert
v Venvil Lord Woolf MR considered at p 493D-G the nature of the interface
between this statutory jurisdiction and the inherent jurisdiction of the court
to prevent abuses of its process which co-exists with it. In discussing the
Grepe v Loam jurisdiction, to which we will now turn, Lord Woolf said:
"This
is one of the situations where it is accepted that notwithstanding the intervention
of Parliament an inherent jurisdiction remains alongside the statutory jurisdiction.
This does not mean that intervention of Parliament may not have cut down the
inherent jurisdiction of the court. If there was an application for an order
of the same width as the statutory jurisdiction, the court could only appropriately
deal with such an application under the statutory jurisdiction. The inherent
jurisdiction to make an order is now more restricted. The question is how
much more restricted."
- Although Grepe
v Loam orders were customarily made in the Chancery Division, it is now
well settled that any court, including a county court, may make such an order
in the exercise of its inherent jurisdiction to protect its process from abuse
(for the jurisdiction of the county court, see Ebert v Venvil per Lord
Woolf MR at p 490G). The salient features of the traditional Grepe v Loam
order were that:
(i) It
could be made by any judge of any court of his own motion. The jurisdiction
was not vested in the Divisional Court of the Queen’s Bench Division alone,
and the Attorney-General did not have to be involved.
(ii) The
order barred the litigant in question from making any further applications
in the matter without first obtaining the leave of the court.
(iii) If
an application was made without the leave of the court being obtained, there
was no need for the other side to attend, and the application would be dismissed
without being heard.
(iv) The
order was susceptible to appeal, if permission to appeal was granted.
(v) The
order was not published in the London Gazette.
7. Protective
measures: (iv) An extended Grepe v Loam order
- The litigious
activities of Mr Ebert led Neuberger J to make an extended Grepe v Loam
order in his case, and this received the approval of this court in Ebert
v Venvil. The additional features of this extended order were that:
(i) It
extended not only to applications in the current proceedings but also to taking
any steps (including the issuing of new proceedings) in any division of the
High Court or in any county court against the defendant bank or its legal
representatives in or arising out of or concerning a wide range of matters
defined in the order without the leave of a judge being first obtained;
(ii) Any
application for leave had to be made without notice in writing to one of two
named judges of the Chancery Division and would be dealt with on paper;
(iii) Six
clear working days’ written notice of any such application had to be given
to the bank’s solicitors, and if they replied in writing their response had
to accompany the application.
- In dismissing
Mr Ebert’s appeal against that order Lord Woolf MR, after considering two
Commonwealth decisions to contrary effect, said in Ebert v Venvil at
pp 496F-G and 497C-D:
"We
can see no reason why absent the intervention of a statute cutting down the
jurisdiction, [the inherent] jurisdiction should apply only in relation to
existing proceedings and not to vexatious proceedings which are manifestly
threatened but not yet initiated …
The
court undoubtedly has the power to stay or strike out vexatious proceedings
when they are commenced under its inherent power. We can see no reason in
principle why it should not also, in accord with the general approach to the
granting of quia timet injunctions, exercise that power to prevent
the serious loss that anticipated but unidentified proceedings could cause
the defendants to those proceedings."
- The extended
Grepe v Loam order contained the novelty that the High Court was now
able to restrict the litigant’s activities in the county court (so long as
they referred to the same matter). Lord Woolf’s justification for this extended
jurisdiction is to be found in his judgment in Ebert v Venvil [2000]
Ch 498A-E. Other novelties were that all Mr Ebert’s applications were reserved
to one or other of two named judges in the Chancery Division (and, in due
course, to only one), and that they might be disposed of on paper. It appears
from Laws LJ’s judgment in Attorney-General v Ebert (at para 33) that
two judges of that division later felt constrained to make a further order
to the effect that Mr Ebert be not allowed to make applications under the
Grepe v Loam order more frequently than once every two months, unless
he could demonstrate that a more urgent application was called for.
8. Protective
measures: (v) An exceptional case
- In the event
the Attorney-General was constrained to seek an even more stringent order
restraining this particular litigant. The only feature of the later judgment
of the Divisional Court which needs to be noted in the present context is
at [2001] EWHC Admin 695 at [35] [2002] 2 All ER 789, where Brooke LJ said:
"We
accept [the submission of the advocate to the court] that the court’s supervisory
role now extends beyond the mere regulation of litigation and of litigants
who have submitted themselves to the compulsory jurisdiction of the court.
It includes the regulation of the manner in which the court process may in
general be utilised. It is of course well established that the High Court
may, in appropriate circumstances, grant an injunction to restrain an anticipated
interference with the administration of justice, amounting to a contempt (Attorney-General
v Times Newspapers Ltd [1974] AC 273, 293G-294A, 306B). The advent of
the Civil Procedure Rules only serves to bolster the principle that in the
exercise of its inherent jurisdiction the court has the power to restrain
litigants from wasting the time of court staff and disturbing the orderly
conduct of court processes in a completely obsessive pursuit of their own
litigation, taking it forward by one unmeritorious application after another
and insisting that they should be afforded priority over other litigants."
- In paragraph
39 a distinction was made between Mr Ebert’s practice of making innumerable
applications (which could be kept under control by other techniques) and the
matters set out in that judgment which amounted to disturbances of the processes
of the court. (Those disturbances were described in paragraphs 12 to 18 of
the judgment).
9. Protective
measures: (vi) The principles
- In Taylor
v Lawrence [2002] EWCA Civ 90 at [56]; [2003] QB 528 this court, acting
within its inherent jurisdiction, created a new procedure for those seeking
to reopen a decision of the court in an exceptional case. This was to be an
all paper procedure:
"The
application will … be considered on paper and only allowed to proceed if after
the paper application this court so directs. Unless the court so directs,
there will be no right to an oral hearing of the application."
- It is therefore
well established on authority that:
(i) This
court, like any court, has an inherent jurisdiction to protect its process
from abuse;
(ii) The
categories of abuse of process will never be closed;
(iii) No
litigant has any substantive right to trouble the court with litigation which
represents an abuse of its process;
(iv) So
long as the very essence of a litigant’s right to access the court is not
extinguished a court has a right to regulate its processes as it thinks fit
(absent any statute or rule or practice direction to contrary effect) so long
as its remedies are proportionate to the identified abuse (whether it is existing
or threatened);
(v) One
way in which a court may legitimately regulate its processes is by prescribing
a procedure to be conducted entirely in writing.
- So far as the
last of these matters is concerned, if a litigant persistently makes applications
or institutes actions that are devoid of merit, then by his conduct he will
have disentitled himself to the hearing that would otherwise be available
as of right. We know of no reasonable suggestion that the equivalent procedures
in the House of Lords (for which see the 2003 White Book, vol 2, p 1161, paras
4.5-4.6) or the European Court of Human Rights itself are not ECHR compliant.
10. The appropriate
range of remedies against abuse of process
- Having set out
the relevant principles we turn now to consider the appropriate range of remedies
for the nuisance caused to the courts by activities of the kind in which Mr
Bhamjee has indulged. In this context we are very grateful to Mr Gott for
the assistance he afforded to us as the advocate to the court. In what follows
we must not be taken to be excluding the possibility that other forms of order
may be made if the situation seems to demand it. For instance, it may on occasion
be thought appropriate to direct that permission to make an application or
to institute an action will only be considered if an advocate with higher
court rights of audience considers there is merit in it, or that the requisite
applications in the High Court should be made to a Master in the first instance.
The possibilities are unlimited. What is important is that the remedy should
always be proportionate to the mischief that needs remedying.
- Quite apart
from the familiar remedies available under CPR 3.4 there are now at least
three techniques available to a court when concerned with actions or applications
which are utterly devoid of merit:
(i) It
may make an order striking out the action or application of its own initiative
under CPR 3.3;
(ii) It
may make a Grepe v Loam order (see para 26 above) to the effect that
no further applications in that action may be issued without the permission
of the court;
(iii) It
may make an extended Grepe v Loam order (see para 27 above), so that
the range of activities covered by the order is extended to embrace the institution
of separate actions concerned with the same subject matter.
If
all these steps prove to be of no avail, then resort has to be made to the
more severe restraints embodied in a section 42 order.
- We will consider
these three techniques in turn.
11. Striking
out under CPR 3.3 and CPR 3.4
- If a Part 7
or Part 8 claim form, or an application in pending proceedings, is filed in
a court office which appears to be vexatious in character, the court staff
should consult a member of the judiciary in order to ascertain whether he
considers that this might be a case in which it would be appropriate to exercise
his powers under CPR 3.3 to strike out the claim or application without troubling
the other side (other than to notify them of the course the court is taking).
If he decides to take this course and he considers that the claim or application
is totally devoid of merit, his order must record that it has been struck
out because it is totally devoid of merit. It is desirable that a record can
be drawn up of orders of this type both at a local level and on a national
basis. If an order is made for the same reason under CPR 3.4, a similar procedure
should be followed. Unless a more stringent form of restraint order has been
made in the case of the particular litigant, a hearing must be arranged, if
the litigant requests it, both at first instance and on any application for
permission to appeal.
12. A Grepe
v Loam order (a civil restraint order)
- In the same
way that the names "Mareva injunction" and "Anton Piller order"
have now receded into history, we consider the time has come for a more modern
name to be given to the Grepe v Loam order. In this judgment we will
use the expression "civil restraint order" by way of analogy with
the well-established civil proceedings order (see para 20 above). The Rules
Committees may prefer to adopt a different expression in due course. We have
seen (see para 26 above) how a civil restraint order may be made at any level
of court and by any level of judge. In its simple form it is only apt to prohibit
the issue of further applications within a single set of proceedings without
the permission of a judge. A civil restraint order is likely to be appropriate
when the litigant’s conduct has the hallmark of one who is content to indulge
in a course of conduct which evidences an obsessive resort to litigation and
a disregard of the need to have reasonable grounds for making an application
to the court. Normally we would not expect a civil restraint order to be made
until after the litigant has made a number of applications in a single set
of proceedings all of which have been dismissed because they were totally
devoid of merit. The characteristics of "vexatious" conduct
set out by Lord Bingham CJ in his judgment in Barker (see para 7 above)
may be a useful indicator of the need for a civil restraint order.
- Because the
effect of a civil restraint order is limited to the particular proceedings
in which it is made, it will ordinarily remain in effect for the duration
of the proceedings unless a judge subsequently considers it appropriate to
set the order aside. The order will identify the judge to whom the necessary
applications should be made.
13 An extended
Grepe v Loam order (extended civil restraint order)
- Because the
nuisance represented by vexatious litigants is steadily increasing we consider
that the courts should now be more willing to make extended civil restraint
orders of the type approved by this court in Ebert v Venvil (see paras
26 and 27 above). The Court of Appeal may make such an order, if appropriate,
restraining all such activity in the Court of Appeal, in any division of the
High Court, and in any county court. A High Court judge may make an order
restraining the litigant in any division of the High Court or in any county
court. If a Master or a district judge in a district registry of the High
Court considers that an extended civil restraint order may be desirable he
should transfer the relevant proceedings to a High Court judge for consideration
as to whether the order should be made. At county court level such an order
should only be made by a designated civil judge or his appointed deputy, and
must be restricted to the control of litigious activity within his designated
county court districts. A district judge should transfer the proceedings to
his designated civil judge if he considers that an extended civil restraint
order may be called for. No doubt similar arrangements will be made in connection
with family proceedings in the county court in due course, because the nuisance
(and the need for an appropriate remedy) is identical, although in that jurisdiction
judges already possess the statutory power available to them in section 91(14)
of the Children Act 1989.
- An extended
civil restraint order will identify the judge to whom written applications
for the requisite permission should be made. It should be made for a period
not exceeding two years. By the time the order comes to be made the litigant
for whom the further restraint has been adjudged necessary will have exhibited
not only the hallmarks of vexatiousness (see para 7 above) but also the hallmarks
of persistent vexatiousness (see para 22 above). We do not include the word
"habitual" among the necessary criteria for an extended civil restraint
order, but there has to be an element of persistence in the irrational refusal
to take "no" for an answer before an order of this type can be made.
The duration of the order may have to be extended if this is considered appropriate,
but it should not be extended for a period greater than two years on any given
occasion.
14. A new
general civil restraint order
- The courts’
experience now shows that an even wider form of order may be necessary for
a particularly rare type of litigant. A civil restraint order and an extended
civil restraint order can only restrain the litigant in the context of the
litigation he is currently conducting and other litigation to like effect.
In paragraph 28 above we have recited the passage in Lord Woolf’s judgment
in Ebert v Venvil in which he explains the basis on which a judge may
make an order with an effect wider than the particular proceedings in which
he is engaged.
- It is now clear
that it may be necessary, because a litigant’s vexatious activities are proving
to be such a drain on the resources of a court, for a judge of the court to
make an order restraining him from commencing any action or making any application
in that court without the prior permission of the court. Any application for
permission must then be made in writing and will be dealt with in writing,
as in the case of an extended order. The need for such a power partly stems
from the nuisance identified by Laws LJ in Attorney-General v Ebert
[2000] EWHC Admin 386 at [53] as justifying a section 42 order:
"…[A]ny
argument as to whether a particular fresh process is or is not caught by an
extant Grepe v Loam order is avoided … I attach no little importance
to this aspect. If Mr Ebert’s obsession deepens, as … I fear it may, there
is every possibility that he may seek to formulate proceedings in such a way
as to raise at any rate an argument to the effect that he does not need Grepe
v Loam leave."
- There is no
need for such a power to be vested in the Court of Appeal since would-be appellants
all require permission to appeal, and consideration is already being given
by the Civil Procedure Rules Committee to a rule which would enable, among
other things, a lord justice to dismiss an application for permission finally
on paper if in his view it is totally devoid of merit. If he is of that opinion,
he should be able to express his reasons for refusing permission in these
terms without feeling himself obliged to give any longer reasons. It is clearly
desirable that such a rule should be introduced.
- At High Court
level, a High Court judge may make an order generally restraining the litigant
from instituting any action or making any application in the High Court without
first obtaining the permission of an identified High Court judge in an all-paper
proceeding. The purpose of such an order will be to protect the process of
the High Court from abuse, so that the order may not be extended to include
the county court. The order will identify the judge to whom any applications
for the requisite permission should be made. A general civil restraint order
should be made for a period not exceeding two years, unless subsequently extended.
- A designated
civil judge (or his appointed deputy) will also have power in an appropriate
case to make a general civil restraint order limited in effect to his own
county court districts to protect the process of those courts from abuse.
15. Restriction
on the right of appeal
- So far we have
said nothing to preclude a litigant from exercising the right available to
all litigants to seek permission to appeal against an order with which they
are dissatisfied. We discussed with Mr Gott, however, whether the time might
come when a court should be entitled to say that the nuisance was such that
the decision of a judge to refuse the requisite permission should be final,
and the litigant should not be entitled to appeal against that decision unless
the judge himself gives permission to appeal. He urged us to be cautious about
adopting such an approach, particularly in the early stages of a litigant’s
vexatious behaviour. He did not dispute, however, that it would be within
the inherent jurisdiction of the court to adopt such an approach if the situation
was bad enough to warrant it, but he suggested that a step by step approach
would be preferable, with a "no appeal" stipulation a remedy of
last resort.
- The governing
Strasbourg principles are to be found in the Belgian Linguistics case
1 EHRR 252, 283 at para 9:
"…
Article 6 of the Convention does not compel States to institute a system of
appeal courts. A State which does set up such courts consequently goes beyond
its obligations under Article 6. However it would violate that Article, read
in conjunction with Article 14, were it to debar certain persons from these
remedies without a legitimate reason while making them available to others
in respect of the same type of actions."
- In our judgment,
if a litigant can be shown to have persistently abused the processes of the
court by making applications and instituting proceedings which have been adjudged
to be totally devoid of merit, despite earlier restraints, this is a legitimate
reason why the time should come when he is limited to one chance of showing
that the new action he wishes to bring, or the new application he wishes to
make, is not totally devoid of merit. If it arguably has merit, then of course
it should be permitted to proceed in the usual way. In Ebert v Official
Receiver [2001] EWCA Civ 340; [2002] 1 WLR 320 this court held that the
equivalent statutory procedure set out in section 42(4) of the 1981 Act was
Convention-compliant: compare the approach of the European Commission on Human
Rights in H v K (see para 17 above) which Buxton LJ cites in paragraph
8 of the judgment of the court in Ebert v Official Receiver.
- We therefore
consider that if a litigant subject to an extended civil restraint order or
a general civil restraint order continues to make the requisite applications
pursuant to the order which are customarily dismissed on the grounds that
they are totally devoid of merit, a judge may, if he thinks fit, direct that
if any further application is dismissed on the same grounds, the decision
will be final. This type of order should only be made by a High Court judge
or a designated civil judge (or his appointed deputy). Thereafter an appeal
court will have no jurisdiction to grant permission to appeal against any
subsequent refusal of permission any more than it has jurisdiction to grant
permission to appeal against an order made by a judge exercising his statutory
powers under section 42(4) of the 1981 Act. We consider that if a litigant
persists in instituting proceedings or making applications which are totally
devoid of merit despite all the earlier efforts the court has made to restrain
his litigious activities and to protect its process from abuse, then this
will be a legitimate reason why the court should eventually deprive him of
the ordinary right to seek to appeal to a higher level of court. It will be
sufficient if any subsequent applications are considered once only.
- It will always
be open to the other party or parties to litigation to apply for the orders
described in Sections 12-15 of this judgment, or for similar orders, as indeed
has happened in the present case (see Section 17 below). The Rules Committees
may consider that it would be useful to prescribe the procedure to be followed,
backed by an appropriate Practice Direction.
16. Summary
- We will now
summarise our guidance in these terms:
(1) If
a court at any level considers that an application or a claim or statement
of case is totally devoid of merit it should say so, and this reason should
appear on the face of the order (para 38);
(2) It
is desirable that a record should be kept of all such orders both at the court
centre at which they were made and on a national basis (para 38);
(3) Procedural
judges should be alert to identify cases in which it may be appropriate for
them to use their own initiative to consider whether to strike a claim out
under CPR 3.3 as being totally devoid of merit before the proceedings are
served on the other party (para 38);
(4) A
judge at any level of court should consider whether to make a civil restraint
order if a litigant makes a number of vexatious applications in a single set
of proceedings all of which have been dismissed as being totally devoid of
merit. Such an order will restrain the litigant from making any further applications
in those proceedings without first obtaining the permission of the court.
Any application issued without such permission shall stand dismissed without
the need for the other party to respond to it (paras 39-40);
(5) If
a litigant exhibits the hallmarks of persistently vexatious behaviour, a judge
of the Court of Appeal or the High Court or a designated civil judge (or his
appointed deputy) in the county court should consider whether to make an extended
civil restraint order against him. This order, which should be made for a
period not exceeding two years, will restrain the litigant from instituting
proceedings or making applications in the courts identified in the order in
or out of or concerning any matters involving or relating to or touching upon
or leading to the proceedings in which it is made without the permission of
a judge identified in the order. Any application for permission should be
made on paper and will be dealt with on paper (paras 41-42);
(6) If
an extended civil restraint order is found not to provide the necessary curb
on a litigant’s vexatious conduct, a judge of the High Court or a designated
civil judge (or his deputy) in the county court should consider whether the
time has come to make a general civil restraint order against him. Such an
order will have the same effect as an extended civil restraint order except
that it will cover all proceedings and all applications in the High Court,
or in the identified county court, as the case may be. It, too, may be made
for a period not exceeding two years (paras 43-47);
(7) If
a litigant subject to an extended civil restraint order or a general civil
restraint order continues to make applications pursuant to the relevant order
which are dismissed as being totally devoid of merit, a High Court judge or
a designated civil judge (or his deputy) should consider whether it is appropriate
to make any subsequent refusals of permission final. Thereafter any subsequent
refusal of permission on the grounds that the application is totally devoid
of merit will not be susceptible of appeal unless the judge who refuses permission
himself grants permission to appeal (paras 48-51).
(8) The
other party or parties to the litigation may apply for any of these restraint
orders, and on such an application the court should make an order that is
proportionate to the mischief complained of (para 52).
- In conclusion,
the nuisance described in Bhamjee (No 1) is now such that we consider
that the time has come when the courts should make use of their inherent jurisdiction
to control it. Strasbourg jurisprudence requires the responses of the courts
to be proportionate, and we consider that the two year civil restraint orders
of the type we have described in this judgment represent the kind of step
by step process approved by Strasbourg jurisprudence which may ultimately
end, if the vexatious litigant’s conduct is not only persistent but also habitual,
in the making of a long term section 42 order. The inherent jurisdiction of
the court has always existed side by side with its rule-derived jurisdiction
(see now CPR 3.1(1)), and the Rules Committees will no doubt wish to consider
in due course whether it would be desirable to exercise their rule-making
powers in this regard. All we are doing in this judgment is to provide a modern
incarnation of the protection described by Bowen LJ in Willis v Earl Beauchamp
[1886] 11 PD 59 in these words:
"…
[T]he rules … do not … deprive the court in any way of the inherent power
which every court has to prevent the use of legal machinery which will occur,
if for no possible benefit the defendants are to be dragged through litigation
which must be long and expensive."
Today
it is also the resources of the courts themselves that require protection.
17. The respondents’
application
- We turn now
to consider the relief sought by the respondents. They asked the court to
make what we have described above as an extended civil restraint order against
Mr Bhamjee. It will be remembered that the respondents are five members of
the Bar whose only involvement in Mr Bhamjee’s life has been to appear for
the opposing party in legal proceedings and whose arguments have persuaded
a court on a particular occasion (or occasions) that Mr Bhamjee’s application
was totally devoid of merit. The history of these proceedings is set out in
the judgment in Bhamjee (No 1) and we need not repeat it here. In a
witness statement made in support of the application the respondents’ solicitor
said:
"In
a telephone conversation I had with Mr Bhamjee on Thursday 3 July Mr Bhamjee
threatened to bring proceedings against (my firm) on the grounds that we have
misled the court in some way. Any such claim would be groundless. Mr Bhamjee
has also informed me that he intends to bring claims against at least eight
further barristers."
- After we had
heard argument from Mr Gott and Mr Nicol (who appeared for the respondents),
Mr Bhamjee addressed the court. We stopped him after 20 minutes because he
was not addressing any of the issues the court had been convened to consider.
Indeed he condemned himself out of his own mouth. He seemed to think he had
a right to petition to appeal to the House of Lords against the order made
in Bhamjee (No 1) refusing him permission to appeal to this court.
He paid no attention at all to the reasons given by this court as to why his
actions against the five barristers were hopeless. Instead he evinced a wish
to ascertain the addresses of Mr Nicol and Mr Gott so that he could join them,
too, as parties to some legal proceedings or other.
- We are satisfied
that the grounds for an extended civil restraint order against Mr Bhamjee
are amply made out. We consider that it would be best if this order is first
policed by a master, with any appeal lying to a High Court judge. We will
therefore make an order in these terms:
(1) The
Claimant is forbidden for a period of two years from the date of this order
(whether personally or through any servant or agent) from making any further
application or taking any steps (including for the avoidance of doubt the
issuing of any new proceedings in whatever form) in the Court of Appeal, the
High Court (which expression includes for the avoidance of doubt any division
thereof, whether in the Royal Courts of Justice or in any District Registry),
or in any County Court against the first five named Defendants and/or their
legal or other representatives in or out of or concerning any matters involving
or relating to or touching upon or leading to these proceedings without permission
obtained in accordance with Paragraph (2) below;
(2) If
the Claimant wishes to apply for permission to make any further application,
step, proceedings or any act as described in Paragraph (1) above, then an
application for such permission must be made in writing to Master Bowman and
the application will be dealt with on paper alone;
(3) If
the Claimant wishes to appeal any decision of Master Bowman made in accordance
with Paragraph (2) above, he must seek permission from:
(a) Master
Bowman in accordance with the procedure set out in Paragraph (2) above (ie
an application in writing to be dealt with on paper alone by Master Bowman);
and thereafter
(b) Park
J, adopting the same procedure (ie an application in writing to be dealt with
on paper alone by Park J) as set out in Paragraph (2) above.
For
the avoidance of doubt no appeal and no application for permission to appeal
will lie to the Court of Appeal from a decision of Park J or Master Bowman
refusing permission to appeal.
(4) Any
amendment or discharge of this order can be made only by Park J. If the Claimant
wishes to seek an amendment or variation he must first seek permission from
Master Bowman to make any such application to Park J. Such an application
for permission to make an application to Park J is to be dealt with in accordance
with Paragraph (2) above (ie an application in writing to be dealt with on
paper alone by Master Bowman) and will be subject to the procedure set out
in Paragraph (3) above in respect of any application for permission to appeal
from any decision of Master Bowman;
(5) If
any form of Claim Form, Statement of Case, Application Notice, Notice of Appeal,
Petition or any other form of document which is within the scope of this order
is served on or given to the first five named Defendants and/or their legal
representatives without the said permission having been first obtained (which
acts or any of them, for the avoidance of doubt, will constitute a breach
of this order and a contempt of court on the part of the Claimant) that person
shall not be required to appear and respond and the purported application/proceedings
shall stand dismissed and struck out without having been heard;
(6) The
Claimant is not to apply for:
(a) permission
from Master Bowman in accordance with the procedure set out in Paragraph (2)
above;
(b) permission
to appeal in accordance with the procedure set out in Paragraph (3) above;
without
first giving notice in writing to Barlow Lyde & Gilbert six clear working
days before any such application of the nature of the application and the
grounds thereof, and if Barlow Lyde & Gilbert reply to such notice in
writing (there being no obligation to do so) such response shall accompany
any application made by the Claimant under Paragraph (2) and/or Paragraph
(3) above;
(7) In
the event of the retirement, permanent indisposition or permanent unavailability
of either Master Bowman and/or Park J, another Master and/or Judge of the
Chancery Division may be assigned to this order by the Vice-Chancellor.
A
penal notice should be incorporated in the order.
- We were told
that the Attorney-General will be applying in the near future for a section
42 order against Mr Bhamjee and that he is likely to seek interim relief in
those proceedings. The order we are making today will stand notwithstanding
any interim order the Divisional Court may hereafter make. Unless and until
a final section 42 order is made we consider that our order provides more
flexible and appropriate protection for these respondents and for the courts
themselves than any interim order the Divisional Court may consider it has
power to make.