Terence Patrick Ewing v London Borough of Camden
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 22 April 2013 |
| Neutral Citation | [2013] EWHC 961 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7601/2012 |
| Date | 22 April 2013 |
[2013] EWHC 961 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Turner
Case No: CO/7601/2012
Mr John McCafferty for the Defendant (did not appear)
Mr Terence Patrick Ewing for the Claimant (Litigant in Person)
The background
By an application notice dated 17 July 2012, the claimant sought leave to bring an application for judicial review of a decision of the defendant relating to changes to the terms upon which it would henceforth permit its tenants mutually to exchange their homes.
The claimant required leave because he was and remains a vexatious litigant. He was made the subject of a Civil Proceedings Order, as defined in section 42(1)(a) of the Supreme Court Act 1981, at the conclusion of a hearing in the Divisional Court on 21 December 1989. The order was dated 12 February 1990. In his judgment, Rose J (as he then was) listed the numerous vexatious claims pursued by the claimant up to that point. There were a total of 37 of which 25 were relied on and dealt with by the court.
It is to be noted that, despite the extent to which the operation of section 42(1)(a) would be expected to have inhibited the scope of the claimant's ability to bring proceedings, since 1990 his forensic tenacity had persisted, seemingly unabated. Over this period he has managed to bring about 20 further actions as a consequence of which the legal canon relating to the topic of vexatious litigation has come to be dominated by the name of Ewing.
This latest claim has generated a preliminary legal issue which it is necessary for me to resolve before any adjudication can be made on the substantive merits of the challenge to the defendant's decision. The point can be simply expressed. Does a person against whom a vexatious litigant desires to bring proceedings have a right to make submissions to the court, whether orally or in writing, concerning whether such permission should be granted?
The procedural history
The claimant's application for leave came before Silber J. on paper on 8 August 2012. Silber J. adjourned the matter to a hearing in open court giving directions which included provision for the defendant to serve a skeleton argument.
The adjourned application came before me on 15 March 2013 by which time both the claimant and the defendant had lodged skeleton arguments. The claimant's stance was that I should not pay any regard to the contents of the defendant's skeleton argument on the ground that it had no standing and that I should proceed solely on the basis of his submissions.
The only logical way to deal with the matter was for the court to adjudicate upon the question of standing as a distinct issue. That is because the extent, if any, to which the defendant's arguments could be taken into account on the application for leave is wholly dependant on the resolution of the issue of their standing to raise them in the first place.
The law
Section 42 of the Senior Courts Act 1981 provides (in so far as is material):
"Restriction of vexatious legal proceedings. E+W
(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; …
(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…"
The terms of the statute are supplemented by a Practice Direction CPR Part 3 PD 7 which provides:
"7.1 This Practice Direction applies where a "civil proceedings order" or an "all proceedings order" (as respectively defined under section 42(1A) of the Supreme Court Act 1981) is in force against a person ("the litigant").
7.2 An application by the litigant for permission to begin or continue, or make any application in, any civil proceedings shall be made by application notice issued in the High Court and signed by the litigant.
…
The application notice, together with any written evidence, will be placed before a High Court judge who may;
(1) without attendance of the applicant make an order giving the permission sought;
(2) give directions for further written evidence to be supplied by the litigant before an order is made on the application;
(3) where the remedy sought, or the grounds advanced, substantially repeat those submitted in support of a previous application which has been refused, make an order dismissing the application without a hearing; or
(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.
…
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."
The issue as to whether the wording of the statute is such that, despite the terms of the Practice Direction, the person against whom a vexatious litigant seeks leave to proceed was dealt with in the case of Re Ewing [2002] EWCH 3169 in a careful and detailed analysis by Davis J. I make no apologies for setting out his approach to this issue in full because his observations are directly material to the point which I have to determine and I do not presume to be able to articulate them with any greater degree of clarity.
Having identified the statutory background and the terms of the Practice direction, Davis J. went on to find as follows:
"13. It is true that the Practice Direction does not in terms state that the prospective Defendant is entitled to be heard on an application under s.42(3). It is also the case, however, that nowhere is it provided that the prospective Defendant is not entitled to be heard. In any event it is clear, from the provisions in paragraph 7.7 entitling the court to direct service on any person against whom the litigant desires to bring proceedings, coupled with the provision in paragraph 7.9 that such a person who has not been given notice may apply to set aside the grant of permission, that such a person, if directed to be served, may attend, and advance argument at, the hearing at which the grant of permission is sought. Any contrary conclusion would be wholly senseless.
14. Mr Ewing's skilful and ingenious argument, however, is to this effect. He submits, relying on the decision of the Court of Appeal in Jones v Vans Colina [1996] 1WLR 580, that it has been authoritatively decided that the only person who may appear on an application under s.42(3) of the Supreme Court Act 1981 (apart from the vexatious litigant making the application, or his representative) is the Attorney-General — whether through counsel instructed on his behalf or counsel instructed to act as amicus curiae (or advocate to the court). He further submits that the Practice Direction, albeit appended to CPR Part 3, is not itself a rule of court or promulgated with any statutory authority: and to the extent that the Practice Direction was promulgated under the inherent jurisdiction of the court it cannot supersede what has been established as the substantive law by the Court of Appeal: and if it purports to do so it is ultra vires.
15. 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...
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