Bhamjee v Forsdick and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE BROOKE,LORD JUSTICE CARNWATH
Judgment Date25 Jul 2003
Neutral Citation[2003] EWCA Civ 799,[2003] EWCA Civ 1113
Docket NumberCase No: A3/2003/0596,A3/2003/0596

[2003] EWCA Civ 1113

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHANCERY DIVISION

Park J

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Master of the Rolls

Lord Justice Brooke and

Lord Justice Dyson

Case No: A3/2003/0596

Between
Ismail Abdullah Bhamjee
Appellant/Claimant
and
David Forsdick and Others (no 2)
Respondents/Defendants

Andrew R Nicol (instructed by Barlow Lyde & Gilbert) appeared for the Respondents

Paul Gott (instructed by the Treasury Solicitor) appeared as advocate to the court

Adam Tolley (instructed by the Treasury Solicitor) appeared for the Attorney-General with a watching brief

The Appellant appeared in person

SUMMARY

(This summary forms no part of the judgment)

In this judgment the Court of Appeal has set out the range of remedies now available to the courts to protect their processes from being abused by litigants who persist in making applications or instituting actions which are totally devoid of merit. The scale of the present problem, in so far as it affects the Court of Appeal itself, was described in paragraphs 22 to 31 of its judgment on the original hearing of Mr Bhamjee's applications for permission to appeal (see Bhamjee v Forsdick [2003] EWCA Civ 799 which has been posted by the court on the website of the British and Irish Legal Information Institute (www.bailii.org). The nature of the problem is also summarised in paras 3–4 of the present judgment.

In paras 5–6 the court describes how the Court of Appeal's staff, lawyers and judges (as opposed to the other parties to the litigation) now have to bear the main burden of the nuisance which the activities of a very small category of litigants represent to the work of the court. In paras 7–10 it describes the main features of vexatious litigation and how in recent years the courts have become more conscious of the extent to which it represents a drain on the resources of the courts themselves. In paras 11–15 the court discusses the nature of a court's inherent powers to protect its processes from abuse. In paras 16–18 it discusses relevant features of Strasbourg jurisprudence.

Paras 20–31 contain a restatement of the protective measures which the courts have taken in relation to such litigants in the past, and the salient features of each measure. Paras 32–34 set out the principles on which a court is entitled to act in order to protect itself (see para 33 in particular).

Paras 35–52 contain guidance about the different remedies a court should adopt, depending on the scale of the problem presented to it. They range from a court striking an action or application out on its own initiative (para 38), or making a Grepe v Loam order (now renamed a civil restraint order) controlling a litigant's activities in the particular proceedings (paras 39–40), to the more restrictive remedies discussed in paras 41–52. These include what was formally known as an Ebert order (now renamed an extended civil restraint order) by which a court may also restrain the litigant's activities in relation to other litigation concerned with the same subject matter (paras 41–42); a new general civil restraint order protecting the whole of a particular court's processes from abuse by that litigant (paras 43–47); and restricting a litigant's right to seek permission to appeal if he can be shown to have persistently abused the process of the court (paras 48–51). It will always be open to the other party or parties to litigation to apply for such orders, or similar orders (para 52).

The court has summarised its new guidance in para 53 and the reasons for it in para 54. In particular these orders should not be made for any period in excess of two years, and only a judge of the High Court or the Court of Appeal or a designated civil judge (or his appointed deputy) should make the more restrictive form of civil restraint orders.

Finally the court made an extended civil restraint order against Mr Bhamjee on the application of the five respondents to these proceedings, who are barristers whose only involvement in Mr Bhamjee's life has been to appear successfully for the opposing party in legal proceedings he has brought in the past (paras 55–58).

INDEX

Part No.

Para No.

1

Introduction .. .. ..

1

2

Vexatious litigation .. .. ..

7

3

A court's inherent powers .. ..

11

4

Protective measures: (i) Strasbourg jurisprudence ..

16

5

Protective measures: (ii) Civil proceedings orders ..

20

6

Protective measures: (iii) Grepe v Loam orders ..

25

7

Protective measures: (iv) An extended Grepe v Loam order

27

8

Protective measures: (v) An exceptional case ..

30

9

Protective measures: (vi) The principles ..

32

10

The appropriate range of remedies against abuse of process

35

11

Striking out under CPR 3.3 and CPR 3.4..

38

12

A Grepe v Loam order (civil restraint order) ..

39

13

An extended Grepe v Loam order (extended civil restraint order)

41

14

A new general civil restraint order .. ..

43

15

Restriction on the right of appeal .. ..

48

16

Summary .. .. ..

53

17

The respondents' application .. ..

55

The Master of the Rolls

This is the judgment of the court, to the preparation of which Brooke LJ has made a signal contribution.

1. Introduction
1

On 14 th May 2003 this court heard and dismissed three applications by Mr Bhamjee for permission to appeal against an order made by Park J on 27 th 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.

2

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.

3

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.

4

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.

5

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.

6

This is the result of the...

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120 cases
1 provisions
  • The Civil Procedure (Amendment No.2) Rules 2004
    • United Kingdom
    • UK Non-devolved
    • 1 January 2004
    ...a civil restraint order against a litigant in the exercise of the jurisdiction explained by the Court of Appeal inBhamjee v. Forsdick[2003] EWCA Civ 1113, and other provisions relating to civil restraint - A new rule 5.4, in substitution for the existing rule 5.4, which makes new provision ......

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