Attorney General v Vernazza

JurisdictionEngland & Wales
JudgeViscount Simonds,Lord Reid,Lord Denning,Lord Morris of Borth-y-Gest
Judgment Date21 July 1960
Judgment citation (vLex)[1960] UKHL J0721-1
Date21 July 1960
CourtHouse of Lords
Attorney-General
and
Vernazza

[1960] UKHL J0721-1

Viscount Simonds

Lord Reid

Lord Keith of Avonholm

Lord Denning

Lord Morris of Borth-y-Gest

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Attorney-General against Vernazza, that the Committee had heard Counsel on Monday the 20th day of June last, upon the Petition and Appeal of Her Majesty's Attorney-General, of the Royal Courts of Justice, Strand, London, W.C.2, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 2d of December 1959, so tar as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Anthony Vernazza, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 2d day of December 1959, in part complained of in the said Appeal, be, and the same is hereby, Discharged, and that the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice with a Direction, That the Order of the Queen's Bench Division of the High Court of Justice, of the 9th day of April 1959, be Varied by adding thereto a further Order, That any legal proceedings instituted by the Respondent the said Anthony Vernazza in any Court before the making of the said Order shall not be continued by him unless he obtain the leave of the High Court or a Judge thereof, and satisfies the Court or Judge that such legal proceeding is not an abuse of the process of the Court and that there is a primâ facie ground for such proceeding.

Viscount Simonds

My Lords,

1

On the 9th April, 1959, upon the application of Her Majesty's Attorney- General the High Court made an order that the Respondent, Anthony Vernazza, should be prohibited from instituting proceedings in the High Court or in any other court unless he obtained the leave of the High Court or a Judge thereof and satisfied the court or Judge that such legal proceeding was not an abuse of the process of the court and that there was a primâ facie ground for such proceeding. Such an order could under the terms of the statute authorising it (namely, section 51 of the Supreme Court of Judicature (Consolidation) Act, 1925) be made only upon the footing that the court was satisfied that he had habitually and persistently and without any reasonable ground instituted vexatious legal proceedings. There could be no doubt that the order was amply justified.

2

On the 14th May, 1959, there came into operation an Act amending the 1925 Act, to which I have referred, by providing that after the words "in any Court" in subsection (1) of section 51 there should be inserted the words "and that any legal proceedings instituted by him in any court before the making of the order shall not be continued by him without such leave". The single question for your Lordships' decision is whether in the circumstances that I shall now state it was competent for the Court of Appeal to vary the order of the High Court by adding an order that any legal proceedings instituted by the Respondent in any court before the making of the order of the 9th April should not be continued by him unless he obtained the leave of the court or a Judge thereof and otherwise satisfied the condition of the statute.

3

On the 21st May, 1959, the Respondent gave notice of appeal against the order of the 9th April, 1959. The Attorney-General, having obtained leave to that end, on the 29th October, 1959, served on the Respondent a notice of contention whereby he gave notice that he would move to vary the order in the manner that I have indicated.

4

The appeal and notice of contention came before the Court of Appeal on the 2nd December, 1959, and both were dismissed. No further question arises on the appeal, but the Attorney-General has by your Lordships' leave appealed from the dismissal of his notice.

5

It is conceded that the order for which the Attorney-General asked was proper to be made by the Court of Appeal if it was competent for that court to make it. I will therefore remind your Lordships of the relevant statutory provisions and Rules of the Supreme Court. They are as follows:—

Section 27 (1) of the Supreme Court of Judicature (Consolidation) Act, 1925, provides (so far as is material) as follows:

"27. (1) Subject as otherwise provided in this Act and to rules of court, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court, and for all the purposes of and incidental to the hearing and determination of any appeal, and the amendment, execution and enforcement of any judgment or order made thereon, the Court of Appeal shall have all the power, authority and jurisdiction of the High Court …"

Order 58 of the Rules of the Supreme Court provides (so far as is material) as follows:

Rule 3 (1) "An appeal to the Court of Appeal shall be by way of re-hearing …"

Rule 9 (3) "The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made and to make such further or other order as the case may require."

6

In these circumstances two questions seem to arise, (1) whether the High Court could itself now make an order in the terms prayed by the Attorney- General, (2) whether the Court of Appeal and therefore this House could make such an order. Upon the first point I am clearly of opinion that the High Court had the necessary power. If I correctly understood learned counsel for the Respondent, the argument to the contrary was not seriously maintained. By the amending Act a new power was given to the court to enable it to deal with proceedings of which it was seised. The object was both to prevent an abuse of its process and to relieve possible victims of vexatious litigation. I would respectfully doubt whether this could in any view be strictly called retrospective legislation, but, if it has this characteristic in any degree, it is of a procedural nature and, as I think, amply covered by the authority of Quitter v. Mapleson, 9 Q.B.D. 672. The cases of In re a Debtor, Ex parte Debtor [1936] Ch. 237 and The Colonial Sugar Refining Company, Limited v. Irving [1905] A.C. 369 are distinguishable. I do not find the former case in all respects easy to understand, but in both cases the distinction is drawn between enactments which provide new remedies and those which affect substantive rights. An enactment which enables the court to deny to a vexatious litigant the power further to prosecute proceedings without leave appears to me to fall within the former category. It would, I think, be wrong to say that a man was deprived of a vested or substantive right, if it was still left open to him to prosecute any claim which was not an abuse of process and for which there was a primâ facie case.

7

Upon the second question, which arises upon the assumption that the High Court could itself make the necessary order, it appears to me that the Court of Appeal, being entitled and bound to apply the law in force at the time of the appeal, was enabled, if it thought fit, to accede to the application of the Attorney-General. The concluding words of Rule 9 (3) are wide. The power is to make such further or other order as the case may require. It would, I think, be too narrow a view to say that the case did not refer to all the existing facts and the law then applicable. I am therefore of opinion that the Court of Appeal could and should have varied the order of the High Court by adding thereto the order that any legal proceeding instituted by the Respondent in any court before the making of that order shall not be continued by him unless he obtains the leave of the High Court or a Judge thereof and satisfies the court or Judge that such legal proceeding is not an abuse of the process of the court and that there is a primâ facie ground for such proceeding.

8

My noble and learned friend. Lord Keith of Avonholm, who is unable to be here today, asks me to say that he concurs in the Opinion that I have given.

Lord Reid

My Lords,

9

I agree.

Lord Denning

My Lords,

10

Mr. Vernazza is a vexatious litigant. He so vexed others by his litigation that on 19th February, 1959, the Attorney-General applied to the High Court for an order under the 1925 Act to prohibit him instituting proceedings without the leave of the High Court: and on 9th April, 1959, the High Court made an order as asked. At that date the High Court had no authority to prohibit him from continuing proceedings which he had already started. But on 14th May, 1959, a new Act was passed which enabled the Court, not only to prohibit the institution of new proceedings without leave, but also to prohibit the continuance of existing proceedings without leave. A week later, on 21st May, 1959, Mr. Vernazza appealed to the Court of Appeal against the original order made against him. On 2nd December, 1959, his appeal was dismissed. So the order stands prohibiting him from instituting new proceedings. But the Attorney-General by a cross-notice sought from the Court of Appeal a further order under the new Act prohibiting him from continuing his existing proceedings. They refused to make this further order, considering they had no power to do so. The Attorney-General appeals to your Lordships' House against...

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