HM Attorney General for England and Wales v Paul Millinder
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift,Lady Justice Andrews |
| Judgment Date | 06 July 2021 |
| Neutral Citation | [2021] EWHC 1865 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3966/2020 |
[2021] EWHC 1865 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Andrews and Mr Justice Swift
Case No: CO/3966/2020
Mr Jonathan Lewis (instructed by the Government Legal Department) for the Claimant
Mr Paul Millinder (represented himself)
Hearing date: 30 March 2021
Judgment Approved by the court for handing down
(subject to editorial corrections)
A. Introduction
Her Majesty's Attorney General for England and Wales applies for an all proceedings order under section 42 of the Senior Courts Act 1981 (“the 1981 Act”). The material part of section 42 of the 1981 Act is 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.
(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 required by virtue of this section.
(5) A copy of any order made under subsection (1) shall be published in the London Gazette.”
An all proceedings order prevents the person concerned both from bringing or continuing any civil proceedings without the leave of the High Court, and from initiating any criminal proceedings (whether by information or bill of indictment) without the leave of the High Court.
There is no dispute before this court on the principles relevant when determining an application made under section 42. One or more of the conditions listed at section 42(1)(a) must be met. In Attorney General v Baker [2001] FLR 759 Lord Bingham CJ described the notion of vexatiousness:
“Vexatious is a familiar term in legal parlance. The hallmark of a vexatiousness 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 proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all portion 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.”
In Attorney General v Covey [2001] EWCA Civ 254 Lord Woolf CJ emphasised that when considering whether the conditions for making an order were met it was necessary “to look at the whole picture” and consider the cumulative effect of the activities relied on “both against the individuals drawn into the proceedings and on the administration of justice generally”.
If any of the conditions at section 42(1)(a) – (c) is met the court then has a discretion whether or not to make an order as requested. Any form of order is a serious step; a balance must be struck between the respondent's prima facie right to invoke the jurisdiction of the court and the need to protect the rights of others not to be faced with abusive and ill-founded claims. In Attorney General v Jones [1990] 1 WLR 859 Staughton LJ put the matter in the following way (at page 865 C-D).
“The power to restrain someone from commencing or continuing legal proceedings is no doubt a drastic restriction of his civil rights, and is still a restriction if it is subject to the grant of leave by a High Court Judge. But there must come a time when it is right to exercise that power, for a least two reasons. First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; secondly the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances, and should not be squandered on those who do not.”
(1) The June 2018 Extended Civil Restraint Order, and the November 2020 General Civil Restraint Order
The Respondent, Paul Millinder, has been the subject of an extended civil restraint order (“ECRO”). ECRO's are made pursuant the Court's power at CPR3.11 and Practice Direction 3C; they may be made where the Court is satisfied that a person has “persistently issued claims or made applications that are totally without merit”. In this context too, “persistent” requires consideration of all relevant circumstances, but situations where the litigant makes repeated attempts to re-litigate matters are classic examples of relevant persistent behaviour. A working description of a claim “totally without merit” is provided by Males LJ in his judgment in Sartipy v Tigris Industries Inc. [2019] 1 WLR 5892 at paragraph 27.
“27. A claim or application is totally without merit if it is bound to fail in the sense that there is no rational basis on which it could succeed … It need not be abusive, made in bad faith, or supported by false evidence or documents in order to totally without merit, but if it is, that will reinforce the case for a civil restraint order.”
On 28 June 2018 HHJ Pelling QC made an ECRO against Mr Millinder: see his judgment on that day in claim CR-2017–140 (“the 2018 ECRO”). The order was for the maximum two-year period permitted by Practice Direction 3C. The order was made on the basis of Mr Millinder's conduct in legal proceedings that (put very generally), arose out of unsuccessful commercial dealings between Middlesbrough Football and Athletic Company (1986) Ltd. (“MFC”) and two companies controlled by Mr Millinder (Empowering Wind Ltd and Earth Energy Investments LLP). Judge Pelling concluded that Mr Millinder had made three totally without merit applications: an application made on 30 March 2018 determined by Mr Justice Snowden on 16 May 2018; an application made on 1 March 2018 determined by Judge Pelling himself; and an application made on 29 March 2018 also determined by Judge Pelling (see respectively, Judge Pelling's judgment at paragraphs 7–9, 11–14, and 15–18). Judge Pelling then considered a series of intemperate emails sent by Mr Millinder between 7 June 2018 and 28 June 2018 to lawyers acting for MFC: see his judgment between paragraphs 22–31. These emails variously contained unsubstantiated allocations of fraud, dishonesty and criminal behaviour, threats of criminal proceedings, and general personal abuse. Taking all these matters into account Judge Pelling's conclusion was as follows:
“37. In all those circumstances I accept the submission that Mr Millinder has consistently refused to take no for an answer resulting in repetitious applications which go over the same ground again and again in order to advance claims that Mr Millinder is convinced are bound to succeed. I accept too that this has resulted in [MFC] incurring significant legal expense that it would have otherwise avoided and use of public resources that would not have otherwise been needed for these proceedings. Mr Millinder has disclosed no insight into the vexatious nature of this activity. On the contrary, in the course of his submissions, he very fairly said that it is precisely what he intended to continue as he has in the past.
38. In those circumstances, I accept the submission that it is highly likely that further...
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