R (Ewing) v DPP
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Elias,Lord Justice Sedley |
| Judgment Date | 11 February 2010 |
| Neutral Citation | [2010] EWCA Civ 70 |
| Date | 11 February 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2009/0576 & C1/2009/0576(Z) |
[2010] EWCA Civ 70
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, ADMINISTRATIVE COURT LORD JUSTICE MOSES
Before: Lord Justice Sedley
Lady Justice Smith
and
Lord Justice Elias
Case No: C1/2009/0576 & C1/2009/0576(Z)
CO10798/07
The Appellant appeared in Person
Ms Samantha Broadfoot appeared as an Advocate of the Court
Hearing date : 14 January 2010
Lady Justice Smith:
The issue in this appeal is whether a vexatious litigant, subject to a civil proceedings order under section 42 of the Senior Courts Act 1981 (the 1981 Act) requires leave pursuant to section 42(3) before he can seek permission to commence proceedings for judicial review in a criminal cause or matter.
Section 42 provides:
“ 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 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, 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.”
The factual background to this appeal may be shortly stated. In December 1989, the appellant, Mr Terence Patrick Ewing became subject to a civil proceedings order under section 42 of the 1981 Act. In June 2006, he commenced a private prosecution by laying four informations against Mr Kenneth George Davis for offences allegedly committed by him against Mr Christopher Haywood under the Public Order Act 1986 and the Protection from Harassment Act 1997. In September 2006, a district judge sitting in the Hastings Magistrates Court held that the proceedings were an abuse of process because the offences concerned a purely private, as opposed to a public, interest and Mr Ewing had no locus standi. Mr Ewing appealed by way of case stated. Mr Ewing did not need leave under section 42(3) to bring that appeal. In July 2007, Mitting J allowed the appeal on the ground that the alleged offences were of a public nature and the informations laid were valid. He remitted the matter for a hearing.
Before any hearing took place, on 3 September 2007, the Director of Public Prosecutions decided to exercise his powers under sections 6(2) and 23 of the Prosecution of Offences Act 1985 to take over the private prosecution and discontinue it.
Mr Ewing wishes to take proceedings for judicial review of that decision. On 3 December 2007, he applied to the court for a declaration that he did not require the leave of the a High Court Judge pursuant to section 42(3) of the 1981 Act but could proceed immediately to seek permission pursuant to CPR Part 54.4 to bring judicial review proceedings.
The application was heard on 4 July 2008 by the Divisional Court comprising Moses LJ and Blake J. Mr Ewing appeared in person. The DPP did not wish to appear and the Attorney General appointed Miss Samantha Broadfoot as Advocate to the Court.
At the outset, Mr Ewing asked Moses LJ to recuse himself on the ground that, between 1984 and 1986, he had appeared as junior counsel instructed by the Treasury Solicitor against Mr Ewing, at first instance and in the Court of Appeal. Moses LJ declined to recuse himself.
On the substantive issue, Mr Ewing's argument was that the proceedings for judicial review which he wished to bring were criminal proceedings and, because he was subject only to a civil proceedings order and not a criminal proceedings order or an all proceedings order, he did not require leave under section 42(3). The Court held that the proposed proceedings were proceedings for judicial review in a criminal cause of matter but that the application for permission was a civil proceeding which Mr Ewing could not make without section 42(3) leave.
Mr Ewing wished to appeal that decision. He was of the view, rightly in my view, that an appeal lay to this Court. From Burton J, he obtained Section 42(3) leave to commence the appeal. Then, in July 2009, Keene LJ granted him permission to appeal on the issue of whether the proceedings for permission to seek judicial review were civil or criminal proceedings. Keene LJ refused Mr Ewing's application for permission to appeal Moses LJ's refusal to recuse himself.
At the hearing before us, Mr Ewing appeared in person. Miss Broadfoot was again appointed as Advocate to the Court. We are grateful for her most helpful skeleton argument and her succinct oral submissions.
Mr Ewing renewed his application for permission to appeal on the recusal issue. After hearing him, we refused the application and said that reasons would be given with the judgment in the appeal.
Recusal
Mr Ewing contended that, although Moses LJ was not actually biased against him, there was an appearance of bias from the history of his conduct of two cases against Mr Ewing between 1984 and 1986. In 1984, Mr Alan Moses, as he then was, was instructed by the Treasury Solicitor before Woolf J in R v Governor of HMP Cardiff, ex parte Ewing, CO/881/84. In 1985, he was again instructed by the Treasury Solicitor in Ewing v Deputy Governor of HMP Wandsworth. That case was heard in the High Court in 1985 and in the Court of Appeal in 1986. No criticism is made of counsel's conduct on any occasion, save that, at the start of the Cardiff case, he told the judge that Mr Ewing 'had brought many cases against public authorities'. Mr Ewing does not contend that that was untrue. However, he seems to have regarded it as implying some form of criticism. When Mr Ewing reminded Moses LJ of this remark in the course of the present proceedings, Moses LJ remembered the event and said that he had intended his remark as a compliment.
Mr Ewing reminded the Court of the test to be applied in cases in which it was alleged that some factor gave the appearance of bias. In Porter v Magill [2002] 2 AC 357, at 494H, Lord Hope of Craighead said:
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
The informed observer must be taken to understand the rules and ethics by which the independent Bar operates in England and Wales. The facts to be considered here are that complaint is made about a connection which occurred well over 20 years ago. On each occasion, Mr Alan Moses was acting in a professional capacity advancing the contentions of his client. He had no personal interest in the litigation. The only alleged criticism of his conduct is the remark I have mentioned above. However Mr Ewing took that remark, it does not seem to me that an informed bystander could possibly have understood it to indicate any personal animus on counsel's part.
I do not consider it to be arguable that an informed bystander would conclude that, by reason of that long past, professional association, there was a...
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Section 42 of the Senior Courts Act 1981
...the court’s permission to apply for permission to apply for judicial review. 76 R (Ewing) v Director of Public Prosecutions and Another [2010] EWCA Civ 70. 77 Re Ewing (No 1) [1991] 1 WLR 388. 44 Vexatious Litigants and Civil Restraint Orders 2.88 Mr Ewing obtained permission under section ......
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