R (Ewing) v Department of Constituional Affairs
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 22 February 2006 |
| Neutral Citation | [2006] EWHC 504 (Admin) |
| Docket Number | CO/28/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 February 2006 |
[2006] EWHC 504 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Sullivan
CO/28/2005
THE 1ST, 2ND AND THIRD CLAIMANTS APPEARED IN PERSON
MR TIM EICKE (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Introduction
In this application for judicial review, the first and second claimants challenge the amendment to paragraph 7.6 of Practice Direction 3 ("the Practice Guidance"), which supplements Rule 3.4 of Part 3 of the Civil Procedure Rules ("the Rules") which took effect on 1st October 2004. The third claimant renews her application for permission to apply for judicial review of the amendment to the Practice Direction.
Factual and Legal Background
The first claimant was made the subject of a civil proceedings order ("an order") under Section 42(1) of the Supreme Court Act 1981 ("the 1981 Act") by the Divisional Court on 21st December 1989. The second claimant was also made the subject of an order by the Divisional Court on 18th November 1993. The third claimant, who is the wife of the second claimant, is not the subject of an order.
Section 42 of the 1981 Act is concerned with the restriction of vexatious legal proceedings. For present purposes, the relevant provisions 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…"
"the court may, after hearing that person or giving him an opportunity of being heard, make a civil 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…"
"(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…"
Both the 1981 Act and the Rules are silent as to the procedure for the making of an application for, and the granting of leave under subsection 42(3). The procedure is governed solely by paragraph 7 of the Practice Direction. Paragraph 7 is headed "Vexatious Litigants" and applies where a civil proceedings order is in force against a litigant. Paragraphs 7.2 to 7.5 set out the information which the applicant for leave must supply to the court. Before the amendment in question, paragraph 7.6 provided that:
"The application notice, together with any written evidence, will be placed before a High Court judge who may:
(1) without the attendance of the applicant make an order giving the permission sought;
(2) give directions for further written evidence to be supplied by the litigant before an order is made on the application;
(3) where the remedy sought, or the grounds advanced, substantially repeat those submitted in support of a previous application which has been refused, make an order dismissing the application without a hearing; or
(4) in any case where (3) does not apply, give directions for the hearing of the application."
As a result, vexatious litigants making an application for leave under Section 42(3) were entitled to an oral hearing in all cases except where their application was substantially a repetition of an earlier unsuccessful application.
On 23rd March 2004, Collins J, the judge in charge of the Administrative Court, wrote to Dyson LJ asking for the following matter to be considered by the Civil Procedure Rule Committee:
"I am concerned that the Court's time is being wasted by the requirement that, where a vexatious litigant seeks permission to begin or continue or make any application in proceedings, there is generally a need to require an oral hearing.
"The problem lies in the Practice Direction at 3PD.7.6(3) which enables the application to be dismissed without a hearing only 'where the remedy sought, or the grounds advanced, substantially repeat those submitted in support of a previous application which has been refused'. Otherwise, there must be an oral hearing (7.6(4)).
"Most applications by vexatious litigants are totally without merit and an oral application cannot achieve anything … I had two applications in my list yesterday, both of which were completely hopeless, by a litigant who failed to appear.
"The ECHR does not require an oral hearing and I see no reason why judges should have to waste valuable court time in listening to unmeritorious applications which are bound to fail. If there are doubts whether there is an arguable claim, an oral hearing can be directed, but if the application is obviously bound to fail, I see no reason why it could not be dismissed on paper…"
At a meeting on 21st May 2004, the Committee agreed with the suggestion of Collins J and approved a draft of an amendment. In July 2004, the Lord Chief Justice as President of the Queen's Bench Division, the Master of the Rolls as President of the Civil Division of the Court of Appeal, the Vice Chancellor as Vice President of the Chancery Division and Dyson LJ on behalf of the Lord Chancellor pursuant to Section 5 of the Civil Procedure Act 1997 ("the 1997 Act") approved a number of amendments to Practice Directions. These included the amendment to paragraph 7.6, which substituted for the old-subparagraphs (3) and (4) new subparagraphs in these terms:
"'(3) make an order dismissing the application without a hearing; or
(4) give directions for the hearing of the application.'."
Thus, an applicant for leave under Section 42(3) is no longer entitled to an oral hearing whether or not his application is repetitious. The High Court judge considering the application has a discretion as to whether a hearing should be directed. It is this change which the first and second claimants contend is unlawful. They say that the amendment is: (1) ultra vires sections 1(1)(b) and 5(1) of, and paragraphs 1, 5 and 6 of Schedule 1 to, the 1997 Act, and sections 42 and 84 of the 1981 Act and is also outwith the court's inherent jurisdiction (insofar as it has any) to make Practice Directions governing its own procedure; (2) contrary to the principles of natural justice or fairness and in particular the right to be heard under common law; (3) incompatible with Article 6(1) of the European Convention on Human Rights ("the Convention") as set out in Schedule 1 to the Human Rights Act 1998; (4) discriminatory under Article 14 of the Convention.
The first claimant has made an application for leave to institute civil proceedings under Section 42(3), which has been dismissed without a hearing, and the second claimant has an application for leave outstanding. I am not concerned with the merits of those applications. On 5th January 2005 the first and second claimants applied for leave under Section 42(3) to apply for permission to apply for judicial review and all three claimants applied for permission to apply for judicial review of the amendment to paragraph 7.6 of the Practice Directions. On 4th April 2005, I granted both of the applications made by the first and second claimants. I observed, when granting them leave under Section 42(3):
"The implications of the amendment to paragraph 7.6 of the first Practice Direction to Part 3 are significant not merely for these Applicants but for all vexatious litigants. The claim raises an important issue. The submissions set out in the Treasury Solicitor's letter dated 17th March 2005 on behalf of the Defendant may well prove to be correct, but the Applicants should be given an opportunity to argue that they are wrong."
When dealing with the application for permission to apply for judicial review, I said:
"Permission is granted in respect of the First and Second Claimants, and refused in respect of the Third Claimant upon the basis that, for the reasons set out in the Defendant's Grounds of Resistance, she has no interest in the subject matter of the claim."
I observed:
"The Defendant's submission that this Claim has no reasonable prospect of success may well prove to be correct, but the lawfulness of the amendment to the Practice Direction is an important issue affecting all vexatious litigants. These vexatious litigants should be given an opportunity to obtain a definitive ruling from the Court."
The third claimant's renewal of her application for permission to apply for judicial...
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