HM Attorney General for England and Wales v Benjamin Gray

Hearing date: 13 March 2024

Further written submissions: 15, 18 and 19 March 2024

Approved Judgment

This judgment was handed down remotely at 2pm on 26 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lord Justice William Davis and

Introduction

In these proceedings His Majesty's Attorney General for England and Wales applies for an all proceedings order against the Respondent, Benjamin Gray, under the Senior Courts Act 1981 (“the SCA”), s.42. This is the judgment of the Court to which we have both contributed.

The legal framework

The SCA, s.42

The power to make orders restraining vexatious legal proceedings derives from s.42(1), which reads as follows:

“ 42. Restriction of vexatious legal proceedings.

(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 the family 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 the family 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”.

Accordingly, the court must determine (i) whether one of the pre-conditions set out in subsection (1) are met; and if so (ii) whether to exercise the discretion to make one of the three types of orders referred to.

The three types of order are defined thus:

“(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”.

Accordingly, these orders do not operate as an absolute bar to further proceedings being brought by someone subject to such an order. Rather, they act as a “filter”, in that someone subject to one of these orders must first obtain the leave of the High Court before bringing further proceedings: Attorney General v Barker [2000] 1 FLR 759 at [2], per Lord Bingham.

Leave will only be granted for the institution or continuance of, or the bringing of any further application in, civil proceedings if 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”: s.42(3). The test for leave for the laying of an information or for an application for leave to prefer a bill of indictment is similarly that 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”: s.42(3A).

Orders of this kind may be for a specified period, but otherwise remain in force indefinitely: s.42(2).

General civil restraint orders

CPR Practice Direction 3C provides for Civil Restraint Orders. Paragraphs 2 and 3 deal, respectively, with Limited and Extended Civil Restraint Orders. The most draconian type of such orders, General Civil Restraint Orders (“GCROs”), are dealt with at paragraph 4.1. A GCRO, which can last for a maximum of three years, can only be made where:

“…the party against whom the order is made persists on issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate”.

Claims are totally without merit (“TWM”) if they are “bound to fail, in the sense that there was no rational basis on which they could succeed”: see the cases cited by Males LJ in Sartipy v Tigris Industries Inc. [2019] 1 WLR 5892 at [27].

Principles relevant to the exercise of the s.42 power

In Barker Lord Bingham described the concept of vexatiousness thus:

“19. “Vexatiousness” is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it 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”.

Mr Randle submitted on behalf of the Attorney General that it was not necessary for all three of these criteria to be present in order for a particular set of proceedings to be considered vexatious. We doubt whether that proposition is correct. Lord Bingham referred to all three criteria as evidencing “the” hallmark of vexatiousness, namely a singular hallmark; and he used the word “and” not “and/or” in introducing the third criterion.

However, it is not necessary for us to resolve this issue, because it is well established that a court considering making a s.42 order is bound by the findings or rulings of other judges as to whether particular claims, applications or proceedings were vexatious. In Attorney General v Jones [1990] 1 WLR 859, the Court of Appeal rejected an argument by Mr Jones that he could challenge the conclusions of various judges in the underlying proceedings in the context of an application for a s.42 order. At 863, the Court explained its reasons thus:

“If any such conclusion was, or was thought to be, erroneous, the remedy was to appeal in those proceedings or, where it was said that the judgment was vitiated by the fraud of other parties, to take appropriate steps to have the judgment set aside. But if that was not done, the decision must stand and is capable of forming the basis for the court being satisfied upon an application under section 42 that Mr Jones had habitually and persistently and without any reasonable ground acted in the manner referred to in subsection 1( a) and/or ( b)”.

Accordingly, applying Jones, these proceedings are not a means by which the individual can re-litigate previous proceedings. If findings have been made that any claim, application or proceedings was TWM, that is conclusive evidence of their vexatious nature. Were it otherwise, the individual would be attacking the final conclusion of a competent tribunal which of itself would be vexatious.

In assessing whether the requirement in s.42 of proceedings or applications being instituted or made “habitually and persistently” has been met, the court must consider the cumulative effect of the individual's activity: Attorney General v Covey and Matthews [2001] EWCA Civ 254 at [61]. In some cases, the individual will engage in attritional litigation against a single person or entity. It is not necessary for the party which is the subject of the vexatious proceedings to be the same throughout. The purpose of the legislation is not only to protect individuals or entities assailed by a vexatious litigant but also to ensure the proper administration of justice generally.

It must be recognised that to restrain someone from freely commencing or continuing legal proceedings is a very significant interference with that person's civil rights. It remains a restriction if the individual needs to apply to a High Court judge for leave to bring proceedings or make an application. In Jones at 865, two reasons were identified for the making of an order pursuant to s.42 in an appropriate case. First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection. Second, the resources of the judicial system are finite. If they are taken up with vexatious claims and applications, those with genuine causes of action will have their cases delayed unjustifiably.

The exercise of the court's discretion will therefore depend on its assessment of “where the balance of justice lies, taking account on the one hand of a citizen's prima facie right to invoke the jurisdiction of the civil courts and on the other the need to provide members of the public with a measure of protection against abusive and ill-founded claims”: Barker at [2].

In The Law Society of England & Wales v Sheikh [2018] EWHC 1644 (QB) at [26], Jay J stated, “There is...