Johnson v Valks
| Jurisdiction | England & Wales |
| Judge | THE VICE CHANCELLOR,LORD JUSTICE ROBERT WALKER,LORD JUSTICE SWINTON THOMAS |
| Judgment Date | 09 November 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J1109-6 |
| Docket Number | CCRTF98/0289/B2 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 1999 |
[1999] EWCA Civ J1109-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWCASTLE COUNTY COURT
(HIS HONOUR JUDGE HARKINS)
Royal Courts of Justice
Strand
London WC2
The Vice Chancellor
(Sir Richard Scott)
Lord Justice Swinton Thomas
Lord Justice Robert Walker
CCRTF98/0289/B2
The Appellant appeared in person.
The Respondent did not attend and was not represented.
Tuesday, 9th November 1999
Lord Justice Robert Walker will give the first judgment.
Mr Kenneth Johnson has, for more than 13 years, been subject to an order made under section 42 of the Supreme Court Act 1981 ("the 1981 Act"), relating to the restriction of vexatious legal proceedings. That section reproduces earlier legislation going back to the Vexatious Actions Act 1896. Its history and purpose have been described in the judgment of this court in Ebert v Yenvil [1999] 3 WLR 670 at pages 673-4. The most material parts of section 42, as amended by the Prosecution of Offences Act 1985 ("the 1985 Act"), are as follows:
"(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, may make a civil proceedings order, a criminal proceedings order or an al proceedings order.
(1A) In this section -
'civil proceedings order' means an order that-
(a) no civil proceedings shall without 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."
Subsection (2) reads:
"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.
….
(4) No appeal shall lie from a decision of the High Court refusing leave required by virtue of this section."
Before its amendment by the 1985 Act, section 42 had no subsection (1A) and no definitions of different types of order ended,
"….may order
(i) that no legal proceedings shall without the leave of the High Court be instituted by him in any court; and
(ii) that any legal 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
(iii) that no application (other than an application for leave under this section) shall without the leave of the High Court be made by him in any legal proceedings whether instituted by him or another in any court."
This amendment came into force on 1st April 1986. Section 24(7) of the 1985 Act provided that an order under section 42 of the 1981 Act, made before but still operative at that date, should be treated as a Civil proceedings order."
On 17th January 1986, about three months before the amendment came into force, Kennedy J, on the application of the Attorney-General, made against Mr Johnson what was plainly intended to be a section 42 order in the old standard form. However, the order was carelessly drawn up as Mr Johnson was named in the body of the order, although not in the title, as Kenneth Jones. Although indent (i) of the order closely followed the wording of paragraph (i) of the unamended section 42(1), indent (ii) ran together parts and omitted other parts of the wording of paragraphs (ii) and (iii) of section 42(1), and there was no indent (iii) in the order. In short, it contained a serious typographical error.
A few days later, the order of Kennedy J was amended under the slip rule by substituting "Johnson" for "Jones", but no other correction was made. On the face of the amended order, Mr Johnson is prohibited for an indefinite period from:
"(i) instituting any legal proceedings in any Court and
(ii) continuing any legal proceedings instituted by him in any Court before the making of this Order) [sic] in any legal proceedings instituted whether by him or another in any Court
unless he obtains the leave of the High Court and satisfies the Court 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."
It is obvious that an error has been made and reference to section 42(1) in its original form makes clear what the error was.
Mr Johnson has a longstanding claim against Mr David Valks. Mr Valks is, or was, a farmer in County Durham who was himself engaged in heavy litigation, involving his father and brothers and a family farming company, as to whether valuable mineral deposits under farmland had been concealed or misrepresented when there was a partition of family assets. Mr Johnson is a mineral valuer and he was retained as an expert witness on behalf of Mr Valks. Mr Johnson carried out a mineral valuation and produced a written report dated 5th August 1995 valuing the minerals as a little over £6 million. He claims to have become entitled to at least £61,596 of which only a small part has been paid. I need not go into the history of that dispute, except to say that it was both complex and bitter. The sums at stake were substantial and it was eventually settled.
On 18th November 1996 Moses J, sitting at Newcastle-on-Tyne, made an order on an application by Mr Johnson, acting in person and not on notice, that Mr Johnson:
"….be allowed to institute legal proceedings against [Mr Valks] for recovery of Fees for the 'Remainder' Value of Minerals amounting to £57,271 shown in paragraph 6 of [Mr Johnson's] Affidavit, plus interest on that sum and costs of the intended action."
Armed with this information, on 17th December 1996 Mr Johnson issued a writ against Mr Valks in the Queen's Bench Division, Newcastle-on-Tyne District Registry. On 18 November 1997 the proceedings were transferred to Newcastle-on-Tyne County Court.
After interlocutory activity, about which it is best to say as little as possible, the trial of the action began on 4th February 1998 at Newcastle before Judge Harkins. Mr Johnson appeared in person. Mr Valks was represented by solicitors and counsel. In his written submissions entitled ("referral report"), Mr Johnson has given a vivid account of the first morning of the hearing. That is one side's account of the matter. Again, it is best to say as little as possible about it at this stage.
Before the short adjournment on the first day, the judge had acceded to the submission made by counsel for Mr Valks that the action should be struck out because Mr Johnson's approach to discovery raised what the judge called "a serious question mark", and there was a real risk that a fair trial was no longer possible. The judge dismissed the action with costs and told Mr Johnson that he did not need leave to appeal against what was a final order.
Mr Johnson wishes to appeal to this court against the dismissal of his action. He gave notice of appeal on 4th March 1998 and his appeal was set down for 1st January 1999, the date when the new general requirement for permission to appeal came into force. However, the question that has been raised is whether Mr Johnson requires further permission from the High Court under section 42 of the 1981 Act. That is the only issue of principle before this court.
That issue raises three separate points.
(1) What is the...
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Re Terence Patrick Ewingthe Claimant Appeared in Person
...Rule 23.10 and Rule 40.9 are consistent with such conclusion. 21 In the course of his submissions Mr Tam referred to the decision in Johnson v Valks 2000 1WLR 1502. Although that was in certain respects a decision of the Court of Appeal, the passage relied on by Mr Tam derives from part of ......
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R (Ewing and another) v Office of the Deputy Prime Minister and another
...the previous procedure, in which they played no part (see Jones v Vans Colina [1996] 1 WLR 580; and the comments of Robert Walker LJ in Johnson v Valks [2000] 1 WLR 1502, 1506D) . I note that Mr Ewing claims that PD7.7 is ultra vires in so far as it authorises a direction for service on the......
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Terence Patrick Ewing v London Borough of Camden
...Rule 23.10 and Rule 40.9 are consistent with such conclusion. 21. In the course of his submissions Mr Tam referred to the decision in Johnson v Valks [2000] 1WLR 1502. Although that was in certain respects a decision of the Court of Appeal, the passage relied on by Mr Tam derives from part ......
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Re Ewing
...direction being ultra vires. The judge said at paragraph 21: "In the course of his submissions Mr Tam referred to the decision in Johnson v Valks [2000] 1 WLR 1502. Although that was in certain respects a decision of the Court of Appeal, the passage relied on by Mr Tam derives from part of ......
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Section 42 of the Senior Courts Act 1981
...of the Court of Appeal was 80 Garratt & Co v Ewing [1991] 1 WLR 1356. 81 Garratt & Co v Ewing [1991] 1 WLR 1356. 82 Johnson v Valks [2000] 1 WLR 1502, CA. 46 Vexatious Litigants and Civil Restraint Orders that Mr Johnson’s appeal to the Court of Appeal required permission under section 42(3......
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Table of Cases
...FCR 650, CA 118 Hope v Krejci and Others [2012] EWHC 1780 (Fam) 155 Hurst v Denton Cox, unreported, 23 February 2011 70 Johnson v Valks [2000] 1 WLR 1502, CA 45, 47, 48 Jones v Vans Colina [1996] 1 WLR 1580 40 Law Society v Otobo [2011] EWHC 2264 (Ch) 79–80, 145–50 Lloyds Investment (Scandi......