HM Attorney General for England and Wales v Mark Gregory Hardy

Hearing dates: 5 & 6 November 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 19 December 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

Mark Hardy has been extensively involved in extensive litigation since 1991, predominantly arising from his own bankruptcy and the insolvency of companies in which he has been an office holder, or in which he has an interest as a shareholder. He has appeared in numerous courts, at home and abroad, in various capacities as a litigant in person, and having obtained rights of audience on behalf of other claimants and respondents, either asserting he has their ‘power of attorney’ or else in accordance with the sanction of the court (See ( Stannard [2015] EWHC 1199 (Admin) referenced in [66] and [67] below). In Sir Henry Royce Memorial Foundation v Hardy [2021] EWHC 714 (Ch) HHJ Paul Matthews said of Mr Hardy at [56]:

“I do not know if any of these complaints [which led Mr Hardy to litigate and to make complaints to professional regulatory bodies] is justified. I will only observe that, if they are, then the defendant [Mr Hardy] is a singularly unfortunate person to have come into contact, in his business life, with so many persons committing criminal, regulatory and disciplinary wrongs in matters which he interested himself”.

The question for this Court is whether Mr Hardy has indeed been unfortunate or, as another court concluded, has been a “serial …vexatious litigant …willing to employ all means, including civil litigation, criminal prosecutions, regulatory and disciplinary jurisdictions, in order to attack those with whom he is in dispute” and, if so, whether we should make an all proceedings order against him pursuant to section 42 (1A) of the Senior Courts Act 1981 (“section 42”).

His Majesty's Attorney General (HMAG) applies by Mr Bayo Randle of counsel, for such an order to endure for the period of three years and to include “ Vaidya” terms ( AG v Vaidya [2017] EWHC 2152 (Admin)), that is preventing Mr Hardy from acting as a representative or McKenzie friend in any proceedings. In specifying this period rather than seeking an indefinite term, it is said that HMAG recognises that Mr Hardy has not been subject to a Civil Restraint Order which has a maximum initial term of three years.

Mr Hardy denies that he has instituted any vexatious proceedings or applications in any court anywhere in the world as set out in the application and supporting witness statements: he claims he has only pursued meritorious complaints against various individuals through the courts or their professional bodies. The order sought is “wholly without merit, false, malicious, vexatious and is a deliberately and institutionally corrupt act by HMAG [then serving in post] and those with whom she was conspiring, and that she was in breach of the Ministerial Code and her oath of office as Chief Law Officer of His Majesty's Government in making the application, and/or her conduct amounted to the tort of Misfeasance in Public Office”. In short, the application was an attempt to thwart reporting and/or prosecution of HMAG and her ministerial colleagues for criminal offences. Some of the then HMAG's political colleagues, including two former Prime Ministers, had received substantial cash donations from Jonathan Patrick Moynihan (“JPM”), “who is the person who petitioned for my bankruptcy and is paying, believed to be without limit, the related legal and other expenses that are presently estimated to exceed £500,000, and I believe the evidence will show that JPM is one of the parties that has improperly encouraged [HM] AG to make this application in order to assist his appointment as a Peer of the Realm as stated in my letter to the present Prime Minister.”

Mr Hardy filed a defence and counterclaim to like effect on 16 May 2023, seeking that “The Claimant be prohibited from commencing or continuing any civil action against the Defendant for such period of time as the Court shall deem just after considering the evidence and hearing legal argument from the parties at the trial of this claim AND be ordered to pay the Defendant such amount of damages as the Court shall deem fit after hearing legal argument.”

Nonetheless, Mr Hardy indicated at the outset of the hearing of these proceedings, which he conducts on his own behalf, that he would give an undertaking in terms, or else submit to an order which had the effect of an all proceedings order SAVE in so far as it related to his ability to make application in respect of insolvency proceedings within his own bankruptcy or companies which “cross relate to my bankruptcy”. (Mr Hardy has several outstanding claims awaiting disposal against more than one respondent.)

This was unacceptable to HMAG for Mr Hardy had given such undertakings in the past but failed to abide by them and more generally has breached or failed to comply with Court orders.

The Legislation

Section 42 of the Senior Courts Act 1981 provides that:

“(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 proceeding 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 of 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.

(4) No appeal shall lie from a decision of the High Court refusing leave require by virtue of this section.

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

…”

Preliminary Matters

The parties were notified in advance of the hearing that the constitution of the Court to hear the extant application included my lady, Collins Rice J who had, prior to her appointment to the High Court in 2020, previously served in HMAG's department, the Attorney General's Office. Mrs Justice Collins Rice had no dealings with any matter involving Mr Hardy and, after careful reflection, did not see the necessity to recuse herself. However, the parties were invited to indicate any objections to her hearing the application. Mr Hardy expressly indicated in writing that he had no such objections.

During the hearing, Mr Hardy required confirmation that, following the change of administration in July 2024, HMAG has personally given his fiat to the continuation of the proceedings commenced by his predecessor. This was confirmed by Mr Randle on instruction before the Court.

Preliminary Issues

A number of preliminary issues were raised by Mr Hardy, some of which clearly engage with aspects of the substantive application; however, it is convenient to refer to them here.

Part 8 procedure

CPR 8.1 (2) provides that:

“A claimant may, unless any enactment, rule or practice direction states otherwise, use the Part 8 procedure where they seek the court's decision on a question which is unlikely to involve a...