Ebert v Birch and Another ; Ebert v Venvil and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD WOOLF, MR
Judgment Date30 March 1999
Judgment citation (vLex)[1999] EWCA Civ J0330-4
Docket NumberLTA 98/7471/6727/3

[1999] EWCA Civ J0330-4

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CHANCERY DIVISION (IN BANKRUPTCY)

(MR JUSTICE NEUBERGER)

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

The Master of the Rolls

(Lord Woolf)

Lord Justice Otton

Lord Justice Aldous

LTA 98/7471/6727/3

Gedaljahu Ebert
Plaintiff/Applicant
and
1. Trevor Nigel Birch
(Liquidator of Europride Limited)
Midland Bank Plc

and

2. Joan Yvonne Venvil
Ralph Wolff
J Rabonowicz
Defendants/Respondents

The Applicant appeared in person.

MR P EMERSON (Instructed by Messrs Carter Backer Winter, London, N19) appeared on behalf of the Trustee in Bankruptcy

MR R HANTUSCH (Instructed by Messrs Teacher Stern & Selby, London, WC1) appeared on behalf of Mr Ralph Wolff.

MR G COOPER (Instructed by Messrs Ince & Co, London, EC3) appeared on behalf of Mr Rabinowicz)

MR A MITCHELL (Instructed by Messrs Eversheds, London, EC4V 4JL) appeared on behalf of the Second Defendant/Respondent

MR I BURNETT QC appeared as an Amicus Curiae

1

Tuesday 30 March 1999

LORD WOOLF, MR
2

This is a judgment of the Court. This case raises a point of considerable importance. The point relates to the extent of the inherent jurisdiction of the Supreme Court to prevent the initiation of civil proceedings which are likely to constitute an abuse of the process of the court. It is not in dispute that the court has an inherent jurisdiction to prevent further applications being made without the leave of the court in existing proceedings which are already before the court. This was authoritatively decided in Grepe v Loam (1887) 37 Ch.D 168. That case has given its name to the orders which have subsequently been made on numerous occasions to prevent applications without the leave of the court in existing proceedings. What is in question is whether the court has jurisdiction in appropriate circumstances to make Grepe v Loam orders prohibiting new proceedings being commenced without the leave of the court and, if so, whether the orders can prohibit County Court proceedings as well as High Court proceedings.

3

That a court should have the jurisdiction which is in issue can hardly be doubted. The facts of Mr Ebert's litigation make the need for the jurisdiction abundantly clear. Mr Ebert by a series of vexatious proceedings has caused the parties to these proceedings to incur very considerable expense which they have little, or no, hope of recovering. Those parties are the liquidator of Europride Limited, the Midland Bank PLC, Mr Ebert's Trustee in Bankruptcy and Mr Ralph Wolff.

4

We are prepared to accept that Mr Ebert may initially have had reason to consider that he had been hard done by, because his co-guarantor had avoided all liability; but it is clear that Mr Ebert has already brought vexatious proceedings, and that he will continue to bring such proceedings unless he is restrained from doing so. For the purpose of determining this appeal, it is not necessary to set out the long history of Mr Ebert's various proceedings. In a detailed judgment, with which Lord Justice Mummery agreed, dated the 25th March 1998, Lord Justice Potter sets out part of that history. Further aspects of the history appear later in connection with Mr Ebert's application to appeal against the order of Neuberger J of 23rd October 1998.

5

As a result of this history, on the 4 th December 1998 HM Attorney General instituted proceedings against Mr Ebert under Section 42 of the Supreme Court Act 1981. Those proceedings have not yet been heard. Section 42 is in the following terms.

"(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 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; 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.

(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 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 or 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.

No appeal shall lie from a decision of the High Court refusing leave required by virtue of this section.

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

6

The procedure for making an application is set out in the rules of the Supreme Court Order 94 rule 15.

7

It will be observed from section 42 that, if an order is made, it may prevent either all civil proceedings or all criminal proceedings or all civil and criminal proceedings being initiated without the leave of the High Court. Such an order is considerably wider than the conventional Grepe v Loam order. It is also wider that the two orders made by Neuberger J against Mr Ebert which have given rise to the point now being considered. An order under s.42 is, however, subject to safeguards. The application has to be made by the Attorney General and the application has to be heard and determined by a Divisional Court (a court consisting of at least two High Court judges) in accordance with the requirement of Order 94 rule 15 (1). The Attorney General is not normally involved in the making of a Grepe v Loam order and not only can that order be made by a single High Court judge, it can be made in the county court [see E Wayte v Slocombe and Rose C.A. (15 th June 1994 unreported) and section 76 County Courts Act 1984].

8

Section 42 of the Supreme Court Act 1981 can be traced back to the Vexatious Litigants Act 1896. Its present form is derived from the Judicature Act 1925, s.51, as subsequently amended.

9

The issue raised by the appeal has to be considered in relation to two orders of Neuberger J. The first is dated 7 July 1998. The relevant parts of that order are as follows:

"that the applicant be not allowed to make any further applications or take any steps in this court (a) in or arising out of these present bankruptcy proceedings. Or (b) concerning any matters involving or relating to or touching upon or leading to these present bankruptcy proceedings or the conduct thereof whether such application is brought in reliance upon any provision or provisions of the Insolvency Act 1986 or the Insolvency Rules 1986 or any amendments or modifications or re-enactments thereof or in reliance or purported reliance upon any other enactment or statutory provision or instrument or upon any principle of law or equity or upon any term of any contract on upon any other grounds whatsoever without leave of a judge being first obtained.

that the applicant is not to apply to the Court for leave to issue any application against the Trustee in Bankruptcy without first giving notice in writing direct to the Trustee six working days before such application (save in the case of an emergency) of the nature of the application and the grounds thereof and if the Trustee replies to such notice in writing such response shall accompany any application made by the applicant for leave to issue such application."

10

The other order is the order of 23 October 1998. Under this order Neuberger J struck out an originating summons issued by Mr Ebert on 13 July 1998 in the Liverpool District Registry on the grounds that it was scandalous, frivolous, vexatious and an abuse of the process of the court. Mr Ebert applies for leave to appeal against that order. We set out later out the reasons why that leave should be refused. This order contains the following additional provisions:

"The plaintiff be not...

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