Re Ewing (No 2)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 27 July 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0727-3 |
| Date | 27 July 1994 |
| Docket Number | No's FC3 93/6501/D FC3 93/6681/D FC3 93/6682/D FC3 93/6355/D |
| Court | Court of Appeal (Civil Division) |
[1994] EWCA Civ J0727-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(APPLICATIONS)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Stuart-Smith and Lord Justice Leggatt
No's FC3 93/6501/D
FC3 93/6680/D
FC3 93/6681/D
FC3 93/6682/D
FC3 93/6355/D
In The Matter of Applications by Terence Patrick Ewing Under Section 42(3) Of The Supreme Court Act 1981.
MR. BURNETT (instructed by the Treasury Solicitor, London) appeared on behalf of the Attorney General.
The Applicant appeared in person.
This is the judgment of the Court.
On 21st December 1989 the Queen's Bench Divisional Court made a civil proceedings order against Mr Ewing under section 42(1) of the Supreme Court Act 1981. In making that order the Court had to be, and was, satisfied that Mr Ewing had habitually and persistently and without reasonable ground pursued vexatious civil proceedings. On 24th July 1990 his appeal against that order was dismissed.
Section 42 (1A) of the Act specifies the effect of such an 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 ;".
Reference should also be made to subsections (3) and (4) of
section 42 :
"(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."
In August 1992 and October 1993 Mr Ewing issued a series of applications for leave under section 42(3) of the Act. In some of the cases he also sought leave to move for judicial review of certain decisions in relation to Legal Aid. In others he only sought leave under the Act in relation to proceedings in the Bow County Court. All these applications came before Laws J on 18th October 1993.
On one of the applications for leave to move for judicial review the judge gave partial leave to move and also gave leave under section 42(3). No issue arises in this Court on that decision. The judge did not grant leave to move for judicial review or leave under section 42(3) on the remaining applications relating to Legal Aid and he refused Mr Ewing leave under section 42(3) in relation to the Bow County Court proceedings.
Mr Ewing now seeks to challenge these refusals of leave by the High Court by making a renewed application to the Court of Appeal. He acknowledges that section 42(4) of the Act precludes an appeal against a decision of the High Court refusing leave. But he relies on Order 59 rule 14(3) of the Rules of the Supreme Court as permitting a renewed application to the Court of Appeal:
"(3) Where an ex parte application has been refused by the Court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal".
The question now before us is whether the Court of Appeal has jurisdiction to entertain these applications. We have thought it right to consider the question of jurisdiction without any consideration of the merits.
The Bow County Court applications .
It is, and has for many years been, the practice for applications for leave by vexatious litigants to be heard by a judge in chambers ex parte : see Becker v Teale (Practice Note) [1971] 1 WLR 1475 at 1476 D. If, in every such case, the litigant could simply escape section 42(4) of the Act by making a renewed application to the Court of Appeal that section would be emasculated and the obvious intention of Parliament frustrated. Order 59 rule 14 (3) must in our judgment be read subject to section 42(3) and (4) of the Act, the plain intention of which is that jurisdiction to give or refuse leave shall be entrusted to the High Court and its decision shall be final. If the High Court grants leave the prospective respondent cannot...
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