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Section 42 of the Senior Courts Act 1981

Document Cited authorities 58 Cited in Related
Vincent
AuthorDavid Giles/Maurice Rifat
Pages15-51

Chapter 2


SECTION 42 OF THE SENIOR COURTS ACT 1981

2.1 Section 42 of the Senior Courts Act 1981 as amended by section 24(3) of the Prosecution of Offences Act 1985, provides:

(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 ...

(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

16 Vexatious Litigants and Civil Restraint Orders

(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.

(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.

(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.

2.2 A similar provision to section 42 of the Senior Courts Act 1981 is contained in section 33 of the Employment Tribunals Act 1996, under which the Attorney General can apply to the Employment Appeal Tribunal for a restriction of proceedings order,1in relation to proceedings before the Employment Tribunal, the Employment Appeal Tribunal or the Certification Officer under the Trade Union and Labour Relations (Consolidation) Act 1992.

CIVIL AND CRIMINAL PROCEEDINGS

2.3 Prior to its amendment by section 24(3) of the Prosecution of Offences Act 1985, section 42 of the Senior Courts Act 1981 did not distinguish between ‘civil’ and ‘criminal’ proceedings. The Act in its un-amended form gave the court power to order that, where the individual had ‘persistently and habitually and without any reasonable ground instituted vexatious legal proceedings or made vexatious application in any legal proceedings’, no legal proceedings could be commenced by that individual without leave of the High Court.

1 See further Chapter 9.

2.4 The amendment whereby a distinction was created between ‘civil’ and ‘criminal proceedings’ was introduced in order to restrict the commencement of vexatious prosecutions.2

HUMAN RIGHTS CONSIDERATIONS

2.5 The question of whether the making of a civil proceedings order infringes Article 6 of the European Convention on Human Rights,3as enacted by the Human Rights Act 1998, has been considered by the European Commission on Human Rights and the European Court of Human Rights where challenges to the vexatious litigant provisions have been made.

2.6 In Golder v United Kingdom,4the court observed that the Article 6 right to access to the courts was not absolute and there was room for limitation of the right provided that the very essence of the right was not impaired and the restrictions were in pursuit of a legitimate aim and were proportionate to achieving that aim. In its report, the Commission said, ‘the control of vexatious litigants is entirely in the hands of the courts … Such control must be considered an acceptable form of judicial proceedings’.

2.7 In Ashingdane v United Kingdom,5the European Court of Human Rights decided that whilst contracting states could, through regulations, limit the right of access to the courts under Article 6, such regulations should not restrict or reduce the access available to the individual to the extent that the very essence of the right is impaired, and a limitation will not be compatible with Article 6 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

2.8 The European Commission on Human Rights considered a challenge to vexatious litigants provisions in H v United Kingdom.6In that case, the Commission considered a complaint that the refusal of the Scottish

2 Re Boala [1951] 1 KB 21.

3 European Convention for the Protection of Human Rights and Fundamental Freedoms
1950.

4 Golder v United Kingdom (1975) 1 EHRR 524.

5 Ashingdane v United Kingdom (1985) 7 EHRR 528.

6 H v United Kingdom (1985) 45 D&R 281.

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court, at a hearing in camera and in the absence of the applicant, to grant permission, under the Vexatious Actions (Scotland) Act 1898, to bring a claim, was a breach of the applicant’s Article 6 right. The Commission referred to the Golder case, and also the decision in Ashingdane, and said that the vexatious litigant order in that case was not a complete bar to the applicant’s right of access to the courts but required any case he wished to bring to be reviewed by a senior judge. Such review did not prevent the applicant from accessing justice but legitimately regulated access in the interest of the administration of justice.

2.9 In Tolstoy Miloslavsky v United Kingdom,7the court considered the extent to which the state may restrict the right of access provided by Article 6 and said that:8

the right of access secured by Article 6(1) may be subject to limitations in the form of regulation by the State. In this respect the State enjoys a certain margin of appreciation. However, the Court must be satisfied, firstly, that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aims sought to be achieved.

2.10 In the case of Ebert v Official Receiver and Others9the Court of Appeal was asked to decide whether Mr Ebert, who was subject to a civil proceedings order, had his Article 6 right infringed by the effect of section 42(4) of the Senior Courts Act 1981 (which provides that no appeal lies from a decision of the High Court refusing leave to institute, continue or make any application in civil proceedings). The judge had refused Mr Ebert’s application to the High Court and his application for permission to appeal to the Court of Appeal. However, the judge granted permission to apply to the Court of Appeal for permission to appeal on the question of whether the inability to appeal against the refusal of leave (see section 42(4)) was contrary to his Article 6 right.

2.11 The Court of Appeal referred to Golder and H v United Kingdom, and stated that the answer to the question of whether Mr Ebert’s Article 6

7 Tolstoy Miloslavsky v United Kingdom (1995) EHRR 442.

8 Tolstoy Miloslavsky v United Kingdom (1995) EHRR 442 at [59].

9 Ebert v Official Receiver and Others [2001] EWCA Civ 340, [2002] 1 WLR 320.

right was infringed in the way he alleged was ‘no’. Lord Justice Buxton

said:10

The detailed and elaborate procedures operated under section 42 of the 1981 Act respect the important ECHR values that procedures relating to the assertion of rights should be under judicial rather than administrative control; that an order inhibiting a citizen’s freedoms should not be made without detailed inquiry; that the citizen should be able to revisit the issue in the context of new facts and of new complaints that he wishes to make; and that each step should be the subject of a separate judicial decision. The procedures also respect proportionality in the general access to public resources, in that they seek to prevent the monopolisation of court services by a few litigants; an aim, and the national arrangements to implement it, that the Strasbourg organs, applying the doctrine of the margin of appreciation, are likely to respect.

2.12 A similar conclusion had been reached in an earlier decision of the Court of Appeal in Attorney General v Covey; Attorney General v Matthews,11in which Mr Covey and Mr Matthews appealed against civil proceedings orders made against them by the Divisional Court on, among other grounds, that the making of the section 42 orders breached their Article 6 rights. In deciding that section 42 of the Senior Courts Act 1981 was compatible with their Convention right to a fair and public hearing, the court said that it is necessary for the court to ensure that, before any section 42 order is made, the individual’s Article 6 right is complied with.

2.13 The court referred to the decision of the European Court of Human Rights in Tolstoy Miloslavsky v...

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