Re Ewing
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS |
| Judgment Date | 07 March 2003 |
| Neutral Citation | [2003] EWCA Civ 581 |
| Docket Number | A2/2003/0127 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2003 |
[2003] EWCA Civ 581
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION) APPLICATION FOR PERMISSION TO APPEAL
(MR JUSTICE DAVIS)
Lord Justice Laws
A2/2003/0127
The Applicant appeared in person
The Respondent was not represented and did not attend
The applicant is subject to a vexatious litigant order made under Section 42 of the Supreme Court Act 1981 on 21 December 1989 and amended on 27 February 1990. By that order he is prohibited from instituting any civil proceedings in any court without the leave of the High Court. He seeks permission to appeal against a judgment of Mr Justice Davis given on 20 December 2002 when the judge refused the applicant's application for a declaration that he was not required to obtain Section 42 leave to institute proceedings in the Information Tribunal. The judge also refused the applicant's application put forward in the alternative to the effect that if leave was required it should, in the circumstances, be granted.
The background is as follows. On 29 October 2001 the applicant wrote to The Security Service inquiring whether "MI5 and the Security Services" had retained any files relating to himself and, if so, requesting a list of them and provisional copies under Section 7 (1) and Section 8 (2) of the Data Protection Act 1998. This letter constituted a "subject access request" under the statute. There was some intermediate correspondence, and then on 11 February 2002 The Security Service replied indicating that it held no data on the applicant for any of the three purposes in respect of which it had notified the Information Commissioner, namely staff administration, building security, CCTV and commercial agreements. The letter went on to say that any other personal data held by The Security Service was exempt from the subject access provisions of the Data Protection Act following a certificate issued to that effect by the Secretary of State on the grounds of national security. The certificate had been issued on 10 December 2001 pursuant to Section 28 (2) of the Data Protection Act.
In addition, the letter notified the applicant of his right to appeal against the certificate.
The applicant proceeded to lodge such an appeal to the Information Tribunal on 26 February 2002 pursuant to Section 28 (4) of the 1998 Act. The applicant had not obtained the leave of the High Court to launch his appeal under Section 28 (4). So it was that on the same day —26 February 2002 —he issued an application in the High Court seeking a declaration that no leave under Section 42 was required, alternatively, an order granting leave.
The Information Tribunal, for its part, adjourned the actual or putative appeal pending the outcome of the High Court application. After some interlocutory hearings that application came before Mr Justice Davis. The issues before him included a question as to the standing of the Secretary of State. The Secretary of State had indicated by counsel at an earlier hearing before Mr Justice Henriques that he wished to be heard on the applicant's Section 42 application. So it was that Mr Justice Davis came to consider these following four questions: (1) did the Secretary of State have locus standi in respect of the applicant's application? (2) Was the Information Tribunal a court for the purposes of Section 42 of the 1981 Act? (3) Is an appeal to the Information Tribunal to be regarded as civil proceedings for the purposes of Section 42 of the 1981 Act? And, (4) if leave is required under Section 42, were there reasonable grounds for bringing the appeal under Section 28 (4) of the Data Protection Act 1998? The judge answered the first three questions in the affirmative and the fourth in the negative, and so dismissed the applicant's application.
The judge granted leave to the applicant under Section 42 (3) of the Supreme Court Act to pursue an application to this court for permission to appeal on two issues only. First, whether the Secretary of State had standing in the application and, secondly, the question whether the Information Tribunal is a court for the purposes of Section 42.
In his grounds the applicant sets out the basis on which he would seek to advance an appeal on those two points and he has addressed me about them this morning. He has also today referred to a very recent decision of the United States' Supreme Court in Miller-El v Cockrell 537 US 1 for the proposition that on a permission application permission should be given if the issues raised are not debatable without the court embarking on an exhaustive detailed inquiry.
I turn first to the question of the Secretary of State's standing to take any part in the Section 42 permission application. The judge referred to paragraphs 7.7 and 7.9 of the Practice Direction which supports Civil Procedure Rule Part 3.4. Paragraph 7 of the Practice Direction deals, in terms, with vexatious litigants. I should read paragraphs 7.6 (4), 7.7 and 7.9:
"7.6 The application notice, together with any written evidence, will be placed before a High Court judge who may -
…..
(4) in any case where (3) does not apply, give directions for the hearing of the application.
7.7 Directions given under paragraph 7.6 (4) may include an order that the application notice be served on the Attorney General and on any person against whom the litigant desires to bring the proceedings for which permission is being sought.
…..
7.9 A person may apply to set aside the grant of permission if -
(1) the permission allowed the litigant to bring or continue proceedings against that person or to make any application against him; and
(2) the permission was granted other than at a hearing of which that person was given notice under paragraph 7."
Mr Justice Davis held that it is inherent in paragraphs 7.7 and 7.9 that the person against whom a vexatious litigant desires to bring proceedings may, no doubt subject to the court's permission, attend the hearing of the litigant's permission application and advance argument at it.
The applicant relied, and has relied before me, on the decision of the Court of Appeal in Jones v Vans Colina [1996] 1 WLR 1580. I have read the report of that case. It is very conveniently summarised by the judge below, who cites from the judgment of Lord Justice Nourse as follows (paragraph 15 of Mr Justice Davis's judgment):
"In Jones v Vans Colina the plaintiff, Mr Marcus Jones, against whom a vexatious litigant order was in place, was, at an ex parte hearing, given leave under s.42 (3) to bring certain proceedings in the County Court against the defendant. When the defendant was in due course served with the County Court proceedings the defendant issued a summons seeking to set aside the original order granting leave (and also a further order permitting service). The Court of Appeal held (not following what Lord Denning had said in Becker v Noel (Practice Note) 1971 1 WLR 803) that the defendant was not a party and was not entitled to be party to the s.42 (3) proceedings; and accordingly had no standing to set aside the order obtained. In the course of his judgment, Lord Justice Nourse (with whom Lord Justice Roch and Lord Justice Schiemann agreed) referred to the provisions of RSC O.32 r.6 (the proceedings in that case, of course, antedating the Civil Procedure Rules) which provided: 'The court may set aside an order made ex parte.' Having referred to Becker v Noel and the reasoning of the judge below, Lord Justice Nourse said this at p 1584H:
'While I am unable to support the whole of the judge's reasoning, I am in no doubt his reasoning was correct. I approach the question in this way. The power expressed in Ord. 32, r.6 can only apply to an order made in proceedings in which the person seeking to have it set aside is either a party or entitled to be made one. The court could not accede to an application made by a person who had no locus standi to make it. On the application under section 42 (3) for leave to institute proceedings the proposed defendant is neither a party to the application nor is he entitled to be made one.
In Becker v Teale (Practice Note) [1971] 1 WLR 1475, another case in which Mrs Dorothy Becker had been given leave to institute proceedings, Davis LJ said, at p. 1476:
'It is to be remembered that the application, in the first instance at any rate, is ex parte, although the judge may cause notice of the application to be given to the Attorney-General so that he may be represented.''
It appears from those observations that Davis LJ assumed that there could be no question of joining the proposed defendant. He was not entitled to be made a party to the application. The Attorney-General was in a different position because it was he who had brought the proceedings in which the applicant had been declared a vexatious litigant. It was he and only he, who had the locus standi to appear on the application; see also the observations of Brooke J in re C., The Times, 14 November 1989.'"
Mr Justice Davis continued:
"A little later on, after citing ex p Ewing [1991] 1 WLR 388 and ex p Ewing (No 2) 1994 1 WLR 1553….. Lord Justice Nourse said this at p 1585H —1586A;
'While I cannot agree with Sir John Wood that the observations made in the two Ewing cases are of more than persuasive authority in the decision of the question that now confronts us, they are certainly valuable as demonstrating an assumption that a defendant to proceedings for the institution of which leave has been given under section 42 (3) cannot apply to set the leave aside. Coupled with the limitations...
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