Re Terence Patrick Ewingthe Claimant Appeared in Person

JurisdictionEngland & Wales
JudgeMr Justice Davis
Judgment Date20 December 2002
Judgment citation (vLex)[2002] EWHC J1220-5
Date20 December 2002
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: IHQ/02/0198

[2002] EWHC J1220-5

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Davis

Case No: IHQ/02/0198

Re: Terence Patrick Ewingthe Claimant Appeared In Person

Mr Robin Tam (instructed by The Treasury Solicitor) appeared for the Secretary of State for the Home Department

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Hearing dates: 10 th and 12 th December 2002

Approved Judgment

The Hon. Mr Justice Davis

Mr Justice Davis

Introduction

1

On the 10 th December 2001 the Secretary of State for the Home Department signed a certificate pursuant to s.28 (2) of the Data Protection Act 1998 ("the 1998 Act") certifying various categories of personal data as exempt from various provisions in that Act, for the purpose of safeguarding national security. On the 11 th February 2002 the Security Service invoked such exemption with regard to an application made by Mr Ewing for access to data. Mr Ewing was aggrieved by such certification. He accordingly sought to appeal to the the Information Tribunal by lodging an appeal on the 26 th February 2002, relying on the provisions of s.28 (4) of the 1998 Act.

2

At that time Mr Ewing was (and is) the subject of an order made on the 21 st December 1989 (as amended on 27 th February 1990 – "the 1989 Order") under s.42 of the Supreme Court Act 1981 ("the 1981 Act") – which is of a type commonly known as a "Vexatious Litigant Order". Such order, put shortly for present purposes, prohibited Mr Ewing from instituting any civil proceedings in any court without the leave of the High Court. On the 26 th February 2002 Mr Ewing had not obtained leave to appeal to the Information Tribunal pursuant to s.28 (4) of the 1998 Act. Mr Ewing appreciated that. On that date he also issued an application in the High Court seeking a declaration that he did not require leave to bring the appeal and, in the alternative, seeking such leave, if leave was required.

3

The issues thus raised by Mr Ewing can be summarised as follows:

3.1

Is the Information Tribunal a "court" for the purposes of s.42 of the 1981 Act and the 1989 Order? Mr Ewing submits that it is not and accordingly leave is not required.

3.2

Is the appeal to the Information Tribunal to be regarded as "civil proceedings" for the purposes of s.42 of the 1981 Act and the 1989 Order? Mr Ewing submits that it is not, and accordingly leave is not required.

3.3

Alternatively, if leave is required, are there reasonable grounds for the bringing of the appeal under s.28 (4) of the 1998 Act? Mr Ewing submits that there are, and that leave should be granted.

4

On the 20 th May 2002, the application came before Mrs Justice Hallett. She adjourned the application pending a directions hearing due to take place before the Information Tribunal on the 20 th June 2002.

5

On the 23 rd July 2002 the Information Tribunal (The Rt. Hon Sir Anthony Evans (President); Professor Jack Beatson QC; and Robin Purchas QC) decided to adjourn the appeal pending the decision of the High Court as to whether Mr Ewing required leave to bring the appeal and (if he did) whether to give leave. In those circumstances, the Information Tribunal understandably declined to express any views, one way or the other, on the merits of the appeal. It did, however, prepare a detailed report on the issue as to whether leave was required, having (at a previous hearing date) received submissions on the point, in case it might assist the High Court to know the views of the Information Tribunal. Such report has been adduced before me and I have been greatly assisted by it. However it remains for me to form my own view on the issues raised.

6

A further point then surfaced. The application in the High Court was restored for further hearing and came before Mr Justice Henriques on the 2 nd September 2002. Appearing before Mr Justice Henriques were Mr Ewing; Counsel for the Secretary of State; and Counsel for the Attorney-General. Counsel for the Attorney-General indicated that the Attorney-General took a neutral position and proposed to take no further part in the proceedings. Counsel for the Secretary of State (the putative respondent to the appeal to the Information Tribunal) indicated that he wished to raise arguments on Mr Ewing's application to the High Court. Mr Ewing then contended that the Secretary of State had (and has) no locus standi – if Latin be permitted – on that application. Mr Justice Henriques, in such circumstances, gave directions as to the issues that were to be determined at the substantive hearing of the application. He directed that the issue as to the locus standi of the Secretary of State be heard as a preliminary issue at such hearing. He also gave consequential directions.

7

It is that application, and those issues, which have come before me for determination. The Attorney-General has maintained his previous stated position and has elected not to be represented before me. The Secretary of State has been represented by Mr Robin Tam of Counsel. Mr Ewing has appeared before me in person. Mr Ewing is, if I may be allowed to put it this way, a highly experienced litigant in person. He has argued his case knowledgeably, fluently, fully and courteously.

Locus Standi

8

The first point, therefore, is whether the Secretary of State has any right to be heard on this application. At first sight, it would seem surprising that the Secretary of State should not have locus standi. He, after all, is directly affected by the appeal to the Tribunal, to which he is the effective respondent, and would appear clearly to have an interest in this application. Such perception would seem to accord with the Application Notice prepared by Mr Ewing as issued on the 26 th February 2002, which names the Security Service (which I would take to be, for this purpose, an effective naming of the Secretary of State for the Home Department) as respondent. It is fair to add, however, that on the Application Notice it is also said that no parties were to be served unless directed by the Court.

9

However matters cannot be resolved quite so simply.

10

Section 42 of the 1981 Act provides 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; 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 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.

(5) A copy of any order made under subsection (1) shall be published in the London Gazette. "

It may be observed that whereas the reference in the sub-sections 1(a) and (b) is to "whether in the High Court or any inferior Court" a "civil proceedings order" is so defined in subsection (1A) as to refer to the institution or pursuit of proceedings in "any court". Section 42, I might add, ultimately derives from the Vexatious Actions Act 1896: the wording of that Act, however, although broadly comparable, is not the same as that set out in s.42.

11

The 1989 Order (in its amended form) was made on the application of the Attorney General and reads, in the relevant respects, as follows:

"IT IS ORDERED...

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