The Lord Advocate V. Andrew Mcnamara
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Reed,Lord Marnoch |
| Judgment Date | 04 June 2009 |
| Neutral Citation | [2009] CSIH 45 |
| Court | Court of Session |
| Docket Number | P2150/07 |
| Published date | 04 June 2009 |
| Date | 04 June 2009 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Reed Lord Hardie Lord Marnoch | [2009] CSIH 45 P2150/07 OPINION OF THE COURT delivered by LORD REED in the cause THE LORD ADVOCATE Petitioner; against ANDREW McNAMARA Respondent: _______ |
Petitioner: McBrearty; Scottish Government Legal Directorate
Respondent: Party
4 June 2009
Introduction
[1] This is an application by the Lord Advocate for an order to be made in respect of the respondent under section 1 of the Vexatious Actions (Scotland) Act 1898 as amended ("the 1898 Act"). The application is based on the respondent's involvement in four legal actions, as explained below. It is opposed by the respondent.
The relevant legislation
[2] Before considering the material relied on in support of the application, it is convenient to consider the relevant legislation with a view to deciding how such an application should be approached.
[3] Section 1 of the 1898 Act provides:
"It shall be lawful for the Lord Advocate to apply to either Division of the Inner House of the Court of Session for an order under this Act, and if he satisfies the Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court, and whether against the same person or against different persons, the Court may order that no legal proceedings shall be instituted by that person in the Court of Session or any other court unless he obtains the leave of the Lord Ordinary on the Bills in the Court of Session, having satisfied the Lord Ordinary that such legal proceeding is not vexatious, and that there is prima facie ground for such proceeding. A copy of such order shall be published in the Edinburgh Gazette."
In accordance with section 3(1) of the Administration of Justice (Scotland) Act 1933, the reference to the Lord Ordinary on the Bills is to be construed as a reference to a judge sitting in the Outer House.
[4] There are few reported decisions under the 1898 Act, and in only one, HM Advocate v Frost 2007 SC 215, was the legislation considered in any detail. That was the only relevant decision to which we were referred in the course of the parties' submissions. There are however a larger number of English cases, some of which are cited in the opinion in Frost, and cases from elsewhere in the Commonwealth, which have been decided under similar legislation and which throw additional light on its proper interpretation. Although none of the English or Commonwealth case law is critical to our decision in the present case, we shall make reference to it, partly in order to draw attention to the existence of a substantial body of law in which many of the issues arising under the 1898 Act have already been the subject of judicial consideration.
[5] The 1898 Act was modelled upon the Vexatious Actions Act 1896, which applied in England and Wales and was, mutatis mutandis, in almost identical terms. Equivalent legislation was also introduced in other Commonwealth jurisdictions, including Canada, Australia and New Zealand. The circumstances which led to the enactment of the 1896 Act were explained by the High Court of Australia in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at page 316:
"In moving the second reading of the bill in the House of Lords, Lord Halsbury referred in detail to numerous actions that had been brought by one person against a number of other persons, including judges and other persons holding public office. It was said that 'the time had arrived when some sort of stop should be put to such proceedings'. The Bill provided that an application for an order that a person should not issue process without leave should be made by the Attorney-General. The person to whom Lord Halsbury referred had brought some forty-eight actions, the details of which were given. His name was Alexander Chaffers. An application against him was the first case brought under the 1896 Act. It is reported as Ex parte the Attorney-General; Re Alexander Chaffers (1897) 76 LT 351; 45 WR 365"
(see also Re Vexatious Actions Act, 1896; Re Boaler [1915] 1 KB 21 per Scrutton J at pages 39-40).
[6] The 1896 Act was enacted against the background of the court's inherent jurisdiction to prevent abuses of process, as Lord Woolf MR explained in Ebert v Venvil [2000] Ch 484 at pages 495-496. The language used in the 1896 Act reflects that background: it is derived from judicial dicta relating to the court's inherent jurisdiction, such as that of Lord Blackburn in Metropolitan Bank Ltd v Pooley (1885) 10 App Case 210 at pages 220-221:
"... from early times ... the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing ...".
[7] In Scotland, also, the court possesses an inherent power to prevent abuses of process (see e.g. Moore v Scottish Daily Record 2009 SLT 27 at paragraphs 13-14 per Lord Justice Clerk Gill). It has been said that an action might be an abuse of process "if it wastefully occupied the time and resources of the court in a claim that was obviously without merit" (Clarke v Fennoscandia Ltd (No. 3) 2005 SLT 511 at paragraph 17 per Lord Justice Clerk Gill); that the court might "prevent proliferation of litigation in relation to essentially the same dispute and the same issues" (Clarke at paragraph 40 per Lord Clarke, with whose opinion Lord Justice Clerk Gill and Lord Menzies expressed agreement); and that an action might be dismissed as incompetent if it was not brought for a legitimate purpose (Clarke v Fennoscandia Ltd 2008 SC (HL) 122 at paragraph 35 per Lord Rodger of Earlsferry). As we shall explain, these are all descriptions of proceedings which might be characterised, in the language of the 1896 and 1898 Acts, as vexatious.
[8] The Scottish authorities establishing and illustrating the court's inherent power to protect itself from an abuse of its process are concerned with proceedings which were pending before the court, and with the taking of steps in those proceedings so as to prevent the court's process from being abused. Whether the courts in Scotland have an inherent power to prevent the commencement of further proceedings by a particular person, except by leave of the court, is less clear (and is a question on which different views have been taken, in relation to the powers of the English and Australian courts, in Ebert v Venvil and Commonwealth Trading Bank v Inglis respectively). The purpose of the 1896 Act appears to have been to confer upon the High Court a statutory basis for exercising such a power (as Professor Michael Taggart explains in his article, "Alexander Chaffers and the Genesis of the Vexatious Actions Act 1896" [2004] CLJ 656 at page 679).Similarly, in relation to Scotland, the significance of the 1898 Act was that it conferred upon the court a statutory power to make such an order, on the application of the Lord Advocate. It thus enabled the court to anticipate potential future abuses of its process, without having to wait until an abuse occurred in proceedings which were pending before it: the court could make an order of a precautionary nature under the Act where a person had a history of having habitually and persistently abused its process.
[9] The 1898 Act is thus a measure of a procedural character, which supplements the court's inherent power to prevent abuses of its process. The effect of an order under the Act is correspondingly limited. It does not deprive the person in question of his right of access to the court, but requires him, before he again exercises that right, to satisfy the court that the proceedings which he proposes to institute will not be an abuse of its process.
[10] We note that the character of the equivalent legislation in other jurisdictions has been similarly analysed. In Jones v Skyring (1992) 109 ALR 303, for example, an equivalent Australian provision was described by Toohey J in the High Court of Australia as being "concerned with practice and procedure, reinforcing the power of the court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance." In Attorney-General v Vernazza [1960] AC 965, which concerned a successor provision to section 1 of the 1896 Act, Lord Denning observed at page 977 that the provision
"... does not prevent Mr Vernazza from continuing proceedings which it is proper for him to carry on. It only prevents him from continuing proceedings which are an abuse of the process of the court. If the proceedings are not an abuse and he has prima facie grounds for them, then he will be given leave to continue them."
[11] The power conferred by the 1898 Act is thus procedural in character and designed to prevent abuses of process. An order under the Act is made by the court itself, and imposes a control over future proceedings which is exercised by the court. Nevertheless, the power conferred by the Act (and by equivalent provisions elsewhere) is of a serious character, as an order under the Act "denies to such a litigant a right that all other citizens have, namely, to call upon the Court to adjudicate a claim simply by making it in Court in the prescribed manner" (Attorney-General v Wentworth (1988) 14 NSWLR 481 at page 484 per Roden J). The fact that the 1898 Act provides for the exercise of a constitutional right (as the right of access to the court was described by Lord Diplock in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at page 977) to be impeded or curtailed has implications for its interpretation, as we shall explain.
[12] As we have noted, section 1 of the 1898 Act requires that the court be satisfied of a number of matters before it "may" make an order. The matters of...
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