Carroll v Kynaston
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE WALLER,Lord Justice Dyson,Lord Justice Patten,Lord Justice Ward,Mrs Justice Sharp,Lord Justice Elias |
| Judgment Date | 13 December 2010 |
| Neutral Citation | [2004] EWCA Civ 386,[2010] EWCA Civ 1404,[2010] EWCA Civ 1157,[2005] EWCA Civ 1286,[2010] EWCA Civ 387 |
| Docket Number | Case No: A2/2010/0766,Case No: A2/2009/1100,A2/2003/2806,A2/2005/1571 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 December 2010 |
[2004] EWCA Civ 386
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE RODERICK EVANS)
Royal Courts of Justice
Strand
London, WC2
Lord Justice May
A2/2003/2806
THE APPELLANT appeared in person
THE RESPONDENT did not appear and was not represented
Wednesday, 17th May 2004
I would like to acknowledge this: there have been allegations, perhaps findings, in the various proceedings to which I am about to refer, that Mr Carroll has not behaved himself properly in various ways, including before some judges. I would like to acknowledge that that simply does not apply today and that he has advanced his application for leave to appeal against the order of Roderick Evans J made on 20th November of last year firmly but entirely politely and, if I may say so, entirely understandably. I am grateful to him for that.
Roderick Evans J made against him an extended civil restraint order whose substance was to restrain Mr Carroll from making any application or taking any step, including issuing new proceedings, in the High Court or any county court against Mrs Christine Kynaston relating to matters which are or were the subject matter of 14 proceedings which were identified in the order by their number. The jurisdiction to make such an order was articulated recently by the Court of Appeal in the case of Bhamjee v Forsdick [2003] EWCA Civ 1113, a decision given on 25 July 2003. Reference may be made briefly in the judgment of the court in that case to paragraph 7, where we find:
"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… in Attorney-General v Barker [2000] 1 FLR 759 Lord Bingham CJ, with whom Klevan J agreed, said (at paragraph 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.'"
Then, at paragraph 22 of the same judgment:
"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 course 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.'"
And finally, paragraph 42 explains an extended civil restraint order in these terms:
"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 ajudged 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 underlying purpose and justification for orders of this kind thus may be seen to be firstly, perhaps, to protect other parties to the litigation from vexatiousness of the kind described; secondly, and importantly, to protect the court from having to expend time and resources on dealing with such vexatiousness.
Both Mr Carroll and Mrs Kynaston were concerned in their various ways with Claims Direct. In the spring of 2001, Mrs Kynaston says that she was one of a group of claims managers in dispute with Claims Direct. Mr Carroll was a franchisee of Claims Direct. He came to regard elements of the business of Claims Direct as fraudulent, and expressed these views to others. He attracted, as he says in his witness statement, supporters and critics. He says that he made a claim against Claims Direct in, I think, the year 2000, which was quickly settled. He tells me this morning that he has been the only person who has successfully brought that sort of a claim against Claims Direct.
Between March and January 2001 he was contacted by a number of disgruntled claims managers who sought his help. It appears that some of his critics, often using pseudonyms, used message boards on the Internet to disseminate what he claims were vile and defamatory postings against him. He claims to have discovered, by seeking pre-action disclosure from those responsible for the websites, that Mrs Kynaston was responsible for some of these messages. Hence, essentially, he brought proceedings against her for defamation, and he claims two things: firstly that he is statutorily entitled to bring those proceedings; and secondly that, as a matter of fact, Mrs Kynaston has continued and continues to this day to publish material of this sort.
The judge in the present application, Roderick Evans J, had before him a long witness statement from Mrs Kynaston and a long witness statement from Mr Carroll. I have read both of these in full and I have looked carefully at their attachments, without, as will readily be understood, reading every word of those attachments. Nevertheless, I am confident that I have a sufficient familiarity with the contents not only of Mrs Kynaston's witness statement but also of Mr Carroll's, to reach the views which I am about to express.
From the witness statement of Mrs Kynaston, the Judge found the following. He observed in his judgment that the application that he was dealing with had first come before Gray J on 9th October when Gray J adjourned it. He related that the most unhappy litigious relationship between Mr Carroll and Mrs Kynaston had started with a claim against Mrs Kynaston for defamation, started in about March 2001. The matter, he said, mushroomed from there. He did not set out the detailed history of the various actions and applications and appeals which had been made in each of these cases. He said that to do so would be a major undertaking and would consume judicial time in a manner with which the application and the order that it seeks was intended to avoid. He referred to early parts of Mrs Kynaston's witness statement in these terms:
"Since then Mr Carroll has commenced and/or initiated seven claims and one counterclaim against me, including a joint action against my daughter. Two of those claims and the counterclaim have been withdrawn. One of the claims plus the claim against my daughter have been struck out. These claims and applications have generated 67 orders made at 41 oral hearings and numerous ex parte hearings.
"3. Mr Carroll has made over 90 applications in those claims, all except 19 items from Mr Carroll's applications have been unsuccessful.
"5. For two short periods during litigation I had legal representation. Whenever I have had assistance from lawyers Mr Carroll has wasted their time (at my expense) by bombarding them with false accusations and threats to report them to the police and/or the Law Society and/or The Bar Council. He has repeatedly threatened my legal representatives with actions against them for allegedly condoning my alleged perjury.
"6. During the course of these proceedings I have had three witnesses. Mr Carroll subsequently commenced proceedings for defamation against two of those witnesses… "
The Judge then said that, taking the 90 applications made, all but 19 items of which had been unsuccessful, it meant, of course, that there has been merit in those 19 items. I say parenthetically that Mr Carroll this morning has drawn my attention to what was no doubt at least one of the 19, which was an occasion when HHJ Gareth Edwards on 8th May 2002 allowed an appeal from a decision, no doubt of a district judge in the Wrexham County Court, where Mrs Kynaston had succeeded in having an action struck out. The appeal was heard and was successful. No doubt that was one of the 19 items which had been successful to which the Judge was referring.
The Judge observed that there might be some merit in the underlying cause of action. It has not been tried, and he made no comment upon it one way or the other. But he said that it was quite clear from the history that was before him that in this series of litigation, application after application had been made and had been found to be totally devoid of merit. He observed that Mr Carroll's conduct of the proceedings had also been criticised by Mrs...
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