Jones v Vans Colina
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE ROCH,LORD JUSTICE SCHIEMANN |
| Judgment Date | 30 July 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0730-18 |
| Date | 30 July 1996 |
| Docket Number | QBENI 95/0739/E |
| Court | Court of Appeal (Civil Division) |
[1996] EWCA Civ J0730-18
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Sir John Wood)
Royal Courts of Justice
Strand
London WC2
Lord Justice Nourse
Lord Justice Roch
and
Lord Justice Schiemann
QBENI 95/0739/E
MR. W. CROWTHER QC and MR. P. STOREY (instructed by Messrs. Hooper & Wollen, Torquay) appeared on behalf of the Appellant Defendant.
THE RESPONDENT PLAINTIFF MR. M.D. JONES appeared in person.
Tuesday, 30th July 1996
Although the procedural history of this case is complex, the question to which it has given rise can be shortly stated. Where a vexatious litigant has been given leave, ex parte, under section 42(3) of the Supreme Court Act 1981 to institute legal proceedings, can the defendant to those proceedings apply to the court to set the leave aside? That question has been answered in the negative by Sir John Wood, sitting as a judge of the Queen's Bench Division. Now we have to say whether we agree with him or not.
Marcus David Jones was formerly a member of the Bar. On 20th March 1989 a civil proceedings order was made against him by a Divisional Court of the Queen's Bench Division under section 42(1) of the 1981 Act. His appeal to this court was dismissed; see Attorney General v. Jones [1990] 1 WLR 859. Mr Jones owns the freehold of a block of flats in Torquay which are let on long leases. In June 1993, for reasons bad or good, he wished to institute proceedings in the Torquay County Court against the tenant of one of the flats, Gordon Charles Vans Colina.
On 25th June 1993, as required by RSC Ord. 32, r.11(1)(g), Mr Jones applied in person to the Queen's Bench judge in chambers, Mr Justice Tuckey, for leave to institute the proceedings under section 42(3). In accordance with the practice governing such applications, no originating process, fee or affidavit was required, although it would no doubt have been open to the judge to ask for an affidavit had he thought it appropriate. The only document put before him was a draft of the proposed particulars of claim. The judge's order, which bears the stamp of the court dated 25th June 1993 but no reference to any record, reads thus:
" Ex parte Marcus David Jones.
Upon hearing the applicant in person it is ordered that
The applicant do have leave to issue proceedings in the County Court for the relief set out in the draft particulars of claim initialled by the judge and annexed hereto".
We have not seen a copy of the particulars of claim in draft, but only in the form in which they were issued and later amended. It appears from our copy that Mr Jones initially claimed possession and damages for breach of covenant, the stated ground for possession being that the entirety of the rent payable by virtue of a supplemental lease dated 15th December 1977 was in arrear as from that date. Lower down it was stated that the annual rent payable under the supplemental lease was a peppercorn. It must have escaped the judge's eye that possession was therefore claimed for non-payment of some 15 peppercorns, which presumably had never been demanded in the first place.
The proceedings were issued on 7th July 1993. Five days later, on 12th July, Mr Jones obtained a further order from Mr Justice Bell, giving him leave to serve the proceedings in the amended form initialled by the judge and annexed thereto. That order is, with the necessary variations, in the same form as Mr Justice Tuckey's order, except that it bears the case number of the County Court proceedings. The amendment pleaded an alternative ground for possession, namely failure to comply with a notice served under section 146 of the Law of Property Act 1925.
The proceedings having been served on him, on 3rd August 1993 Mr Vans Colina issued a summons in the Queen's Bench Division seeking an order that the orders of Mr Justice Tuckey and Mr Justice Bell be set aside. After two ineffective hearings, the summons came before Mr Justice Ognall on 4th November 1993, when he made the order sought, refused Mr Jones leave to institute proceedings and gave Mr Vans Colina most of his costs. Mr Jones did not submit that there was no power to make the order sought. On the submissions which were made to him, the judge was clearly right to make it. He formed a clear view that the proceedings were a device or stratagem by Mr Jones to achieve an ulterior purpose and that there had been material non-disclosure to Mr Justice Tuckey. There being no proceedings in the High Court in which it could be made, the judge's order was headed:
"In the Torquay County Court
Before Mr Justice Ognall
Sitting in the Queen's Bench Division of the High Court of Justice".
It bore two County Court case numbers.
Mr Vans Colina then went to the Torquay County Court in order to tax the costs he had been awarded by Mr Justice Ognall. The district judge, hardly surprisingly, took the view that he had no power to tax costs awarded in the High Court. He dismissed the application and ordered Mr Vans Colina to pay Mr Jones's costs. Mr Vans Colina then issued a summons in the Queen's Bench Division seeking to amend Mr Justice Ognall's order by deleting the words "In the Torquay County Court", together with the relevant case number. That summons came before Sir John Wood on 13th December 1994, when Mr Jones submitted that Mr Justice Ognall had had no power to make the order he did, so that it was a nullity which could not be amended. Sir John Wood, being of the opinion that there was an arguable point on jurisdiction, adjourned the summons so that an amicus curiae could be instructed.
The matter came back before Sir John Wood in April 1995, when the amicus made submissions in support of Mr Vans Colina. The judge's view was that Mr Justice Ognall had had no power to set aside the leave given by Mr Justice Tuckey and Mr Justice Bell, so that his order was a nullity, which he, Sir John Wood, had no power to amend. On 25th April he dismissed the summons but gave Mr Vans Colina leave to appeal to this court. Notice of appeal was duly entered. The appeal has been argued on Mr Vans Colina's behalf by Mr Crowther QC. The amicus has not appeared in this court. Mr Jones, as he has at every stage of the case, has appeared in person.
The power for the court to make (inter alia) a civil proceedings order is contained in section 42(1) of the 1981 Act. So far as material, subsection (1A) provides:
"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 …"
Subsections (3) and (4) provide:
"(3) Leave for the institution or continuance of, or for the making of an application in, any legal 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 for the institution or continuance of, or for the making of an application in legal proceedings by a person who is the subject of an order for the time being in force under subsection (1)."
RSC Ord. 32 , r.6 provides:
"The Court may set aside an order made ex parte."
The primary submission advanced on behalf of Mr Vans Colina, both here and below, was that it is a fundamental rule of justice that an order made ex parte may be set aside on the application of the party against whom it has been made. In this court Mr Crowther has relied on an observation of Sir John Donaldson MR in WEA Records Ltd. v. Visions Channel 4 Ltd. [1983] 1 WLR 721, 727:
"There is no doubt that the High Court has power to review and to discharge or vary any order which has been made ex parte. This jurisdiction is inherent in the provisional nature of any order made ex parte and is reflected in RSC, Ord. 32 r.6."
Mr Crowther also relied on Becker v. Noel, which is noted at [1971] 2 All ER 1248. There Cusack J had given Mrs Dorothy Becker, a vexatious litigant, leave, ex parte, to issue a writ against Mr and Mrs Noel, who applied to set the...
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