IN THE HIGH COURT OF JUSTICE CO/1353/00

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

 

 

IN THE MATTER OF section 42(1) of the Supreme Court Act 1981 as amended by section 24 of the Prosecution of Offences Act 1985

AND IN THE MATTER OF Andrew James Covey

 

 

B E T W E EN :- HER MAJESTY’S ATTORNEY-GENERAL Claimant

- and -

 

ANDREW JAMES COVEY Respondent

 

_________________________________________________________________

 

SKELETON ARGUMENT OF ANDREW JAMES COVEY

_________________________________________________________________

 

 

TIME ESTIMATE - 2 days

 

For Court use only

Date filed

 

Name of court High Court of Justice

Queen’s Bench Division

Administrative Court

Case or Claim number CO/1353/00

The Respondent is the Respondent to an application by Her Majesty’s Attorney-General for a "Civil Proceedings Order" against him under section 42(1) of the Supreme Court Act 1981.

 

 

 

 

 

 

 

Name Andrew James Covey

Address 4 Glenn Court

Glen Close

Beaconhill

Surry

GU4 3RG

Telephone

FAX

 

The Respondent defends the application for a "Civil Proceedings Order" against him under section 42(1) of the Supreme Court Act 1981 by Claim Form dated 14 April 2000.

 

 

 

DETAILS OF CASE

1. The Claimant is applying for a "Civil Proceedings Order" under section 42(1) of the Supreme Court Act 1981 by Claim Form dated 14 April 2000.

2. The Respondent intends to be heard in opposition to this under section 42(1) of the Supreme Court Act 1981 which is his right under both statute and Common Law.

3. The Respondent therefore seeks to raise various issues and points of law in defence to the application before the court.

4. The Respondent contends that the various issues raise important questions of law and jurisdiction which are comprehensively set out in the "List of Issues" and "Propositions of Law" in this Skeleton Argument which simultaneously raise important issues of human rights which are relevant in view of the impact of the incorporation of the Human Rights Act 1998 into domestic law on 2 October 2000.

 

 

 

 

The Respondent will rely on the following arguments at the hearing of the application.

 

LIST OF ISSUES

 

WHETHER ANY OF JUDGES IN DIVISIONAL COURT DISQUALIFIED FROM HEARING CLAIMANT’S APPLICATION

1. Whether any of the judges in Divisional Court hearing Claimant’s application is either "disqualified" from hearing the application under section 42(1) Supreme Court Act 1981 or whether there would be "real danger" of bias if they heard application?

 

 

 

 

"NATURAL JUSTICE" AND RESPONDENT’S RIGHT TO BE HEARD UNDER SECTION 42(1) SUPREME COURT 1981

1. Whether Respondent entitled to "Natural Justice" and has statutory right to be fully heard on all of legal issues raised in Respondent’s skeleton argument relating to HM Solicitor-General and related issues that he seeks to raise under section 42(1) Supreme Court Act 1981?

2. Whether, if denied opportunity of addressing Divisional Court on any particular issue, this breaches mandatory provisions of section 42(1) Supreme Court Act 1981 and whether this will render "Civil Proceedings Order" against Respondent void ab initio and a nullity?

 

 

 

 

VALIDITY OF HM SOLICITOR-GENERAL’S AUTHORISATION FOR APPLICATION FOR "CIVIL PROCEEDINGS ORDER" UNDER SECTION 42(1) SUPREME COURT ACT 1981

1. Whether sufficient proof before Divisional Court that Solicitor-General personally considered whether application for "Civil Proceedings Order" should be applied for against Respondent and personally considered papers in case?

 

 

 

 

CHALLENGING DECISION TO APPLY FOR "CIVIL PROCEEDINGS ORDER" OF HM SOLICITOR-GENERAL

1. Whether decision of HM Solicitor-General to apply for "Civil Proceedings Order" can be challenged in a court as being oppressive and unconstitutional?

 

 

 

 

WHETHER RESPONDENT HAS SATISFIED CRITERIA FOR MAKING OF "CIVIL PROCEEDINGS ORDER"

1. Whether Respondent has "habitually and persistently and without any reasonable ground" "instituted vexatious civil proceedings" etc., under section 42(1)(a)(b) Supreme Court Act 1981?

 

 

 

 

WHETHER DIVISIONAL COURT SHOULD MAKE ‘CIVIL PROCEEDINGS ORDER" IN ITS DISCRETION

1. Whether Divisional Court should exercise its discretion to make "Civil Proceedings Order" even though Respondent may have satisfied criteria in section 42(1) Supreme Court Act 1981?

 

 

 

 

FAILURE TO SUPPLY COPIES OF "BENCH MEMOS/SUMMARIES" OF CROWN OFFICE LAWYERS TO RESPONDENT

1. Whether Respondent will be denied "natural justice" by failure of Divisional Court to either inform him that they have been supplied with confidential "Bench Memos/Summaries" prepared by Crown Office lawyers and to provide Respondent with copies?

 

 

 

 

LACK OF IMPARTIAL HEARING BEFORE DIVISIONAL COURT BEING BROUGHT BY HM SOLICITOR-GENERAL ON BEHALF OF HM ATTORNEY-GENERAL

1. Whether there is lack of an "independent and impartial tribunal" before Divisional Court as required by schedule 1 article 6(1) Human Rights Act 1998 as result of application being brought on behalf of HM Attorney-General by HM Solicitor General or their predecessors being consulted regarding appointment of High Court Judges?

2. Whether there is lack of an "independent and impartial tribunal" before Divisional Court as required by schedule 1 article 6(1) Human Rights Act 1998 as result of application being brought on behalf of HM Attorney-General, by HM Solicitor General or their predecessors being consulted regarding appointment of High Court Judges before being appointed as Lord Justices of Appeal?

3. Whether there is lack of an "independent and impartial tribunal" before Divisional Court as required by schedule 1 article 6(1) Human Rights Act 1998 as result of application being brought on behalf of HM Attorney-General by HM Solicitor General or their predecessors being members of HM Government due to recommendations of Lord Chancellor as to appointment of High Court judges, and recommendation of Prime Minister on advice from Lord Chancellor regarding appointment of Lord Justices of Appeal?

 

 

 

 

LENGTH AND PROPORTIONALITY OF "CIVIL PROCEEDINGS ORDER" AGAINST RESPONDENT

1. Whether Divisional Court should make "Civil Proceedings Order" limited in time in respect of Respondent under section 42(2) Supreme Court Act 1981?

2. Whether Divisional Court should apply any tariff criteria applicable to seriousness of case to Respondent before making indeterminate "Civil Proceedings Order" under section 42(2) Supreme Court Act 1981?

 

 

 

 

EXTENT AND EFFECTS AND PROPORTIONALITY OF "CIVIL PROCEEDINGS ORDER" AGAINST RESPONDENT

1. Whether Divisional Court’s exercise of its discretion in making "Civil Proceedings Order" would be disproportionate in effect in respect of Respondent by restricting bringing of further actions in respect of subject matter wholly unrelated to actions to be taken into account by Divisional Court?

2. Whether Divisional Court should consider utilisation of alternative remedies by Injunction under section 37(1) Supreme Court Act 1981 and/or under inherent jurisdiction of court as being more proportionate remedy in respect of actions of Respondent?

 

 

 

 

 

PROPOSITIONS OF LAW

 

WHETHER ANY OF JUDGES IN DIVISIONAL COURT DISQUALIFIED FROM HEARING CLAIMANTS’ APPLICATION

1. Contended that any of judges hearing current application are either "disqualified" from hearing application under section 42(1) Supreme Court Act 1981 or there would be "real danger and possibility" of bias if they heard application if they either appeared for HM Attorney-General generally or if they appeared on section 42 applications whilst at the bar.

2. Any such involvement, or indeed any other reasons why a particular judge should not sit should be fully disclosed to parties beforehand, as Respondent objects to any such judge sitting.

3. Contended that such a judge would compromise any objective test of an "impartial tribunal for purposes of schedule 1 article 6(1) Human Rights Act 1998.

4. Therefore would be "real danger" of possible prejudice or bias if any such judges were part of Divisional Court hearing current application.

5. For principles applicable to "disqualification", see R -v- Bow Street Metropolitan Stipendiary Magistrate and ors ex parte Pinochet Ugarte (No 2) (1999) 1 All ER 577.

6. See in particular R -v- Bow Street Metropolitan Stipendiary Magistrate and ors ex parte Pinochet Ugarte (No 2) (1999) 1 All ER 577, per Lord Browne-Wilkinson at page 586 paras C-J to page 587 paras A-C,

"The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

In my judgment, this case falls within the first category of case, viz where the judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure: see Shetreet Judges on Trial (1976) p 303 and De Smith, Woolf and Jowell Judicial Review of Administrative Action (5th edn, 1995) p 525. I will call this ‘automatic disqualification’.

In Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759, 10 ER 301 the then Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. In the action Lord Cottenham LC sat on appeal from Shadwell VC, whose judgment in favour of the company he affirmed. There was an appeal to your Lordships’ House on the grounds that Lord Cottenham LC was disqualified. Their Lordships consulted the judges, who advised that Lord Cottenham LC was disqualified from sitting as a judge in the cause because he had an interest in the suit (see 3 HL Cas 759 at 786, 10 ER 301 at 312. This advice was unanimously accepted by their Lordships. There was no inquiry by the court as to whether a reasonable man would consider Lord Cottenham LC to be biased and no inquiry as to the circumstances which led to Lord Cottenham LC sitting. Lord Campbell said (3 HL Cas 759 at 793, 10 ER 301 at 315):

 

‘No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest’. (My emphasis.)

On occasion, this proposition is elided so as to omit all references to the disqualification of a judge who is a party to the suit: see eg R v Rand (1866) LR 1 QB 23 and R v Gough [1993] 2 All ER 724 at 730,[1993] AC 646 at 661. This does not mean that a judge who is a party to a suit is not disqualified just because the suit does not involve a financial interest. The authorities cited in Dimes’ case show how the principle developed. The starting-point was the case in which a judge was indeed purporting to decide a case in which he was a party. This was held to be absolutely prohibited. That absolute prohibition was then extended to cases where, although not nominally a party, the judge had an interest in the outcome."

7. See further in R -v- Bow Street Metropolitan Stipendiary Magistrate and ors ex parte Pinochet Ugarte (No 2) (1999) 1 All ER 577, per Lord Browne-Wilkinson at page 586 paras D-J,

------------------------------------------------------------------------------------------------------------------------------------------------------------"My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties. Thus in my opinion if Lord Hoffmann had been a member of Al he would have been automatically disqualified because of his non-pecuniary interest in establishing that Senator Pinochet was not entitled to immunity. Indeed, so much I understood to have been conceded by Mr Duffy."

---------------------------------------------------------------------------------------------------------------------------------------------------------"If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart CJ’s famous dictum is to be observed: it is ‘of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’ (see R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234)."

8. See further in R -v- Bow Street Metropolitan Stipendiary Magistrate and ors ex parte Pinochet Ugarte (No 2) (1999) 1 All ER 577, per Lord Hope at page 593 paras G-J, to page 595 paras A-E,

"As my noble and learned friend Lord Goff of Chieveley said in R v Gough [1993] 2 All ER 724 at 730, [1993] AC 646 at 661, the nature of the interest is such that public confidence in the administration of justice requires that the judge must withdraw from the case or, if he fails to disclose his interest and sits in judgment upon it, the decision cannot stand. It is no answer for the judge to say that he is in fact impartial and that he will abide by his judicial oath. The purpose of the disqualification is to preserve the administration of justice from any suspicion of impartiality. The disqualification does not follow automatically in the strict sense of that word, because the parties to the suit may waive the objection. But no further investigation is necessary and, if the interest is not disclosed, the consequence is inevitable."-------------------------------------------------------------------------------------------------------------------------------------------------------------------------"In practice judges are well aware that they should not sit in a case where they have even the slightest personal interest in it either as defendant or as prosecutor.

The ground of objection which has invariably been taken until now in criminal cases is based on that other principle which has its origin in the requirement of impartiality. This is that justice must not only be done; it must also be seen to be in done. It covers a wider range of situations than that which is covered by the maxim that no one may be a judge in his own cause. But it would be surprising if the application of that principle were to result in a test which was less exacting than that resulting from the application of the nemo judex in sua causa principle. Public confidence in the integrity of the administration of justice is just as important. perhaps even more so, in criminal cases. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) makes no distinction between civil and criminal cases in its expression of the right of everyone to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

9. See further in R -v- Bow Street Metropolitan Stipendiary Magistrate and ors ex parte Pinochet Ugarte (No 2) (1999) 1 All ER 577, per Lord Hope at page 595 para E,

---------------------------------------------------------------------------------------------------------------------------------------------------------"Where a judge is performing a judicial duty, he must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial."

10. Finally, see in R -v- Bow Street Metropolitan Stipendiary Magistrate and ors ex parte Pinochet Ugarte (No 2) (1999) 1 All ER 577, per Lord Hutton at page 596 para J to page 598 paras A-J,

"In his judgment in R v Gough [1993] 2 All ER 724 at 728, [1993] AC 646 at 659 my noble and learned friend Lord Goff of Chieveley made reference to the great importance of confidence in the integrity of the administration of justice, and he said:

‘In any event, there is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart CJ in R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234, that it is––"of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."’

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------‘However I am of opinion that there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation. I find persuasive the observations of Lord Widgery CJ in R v Altrincham Justices, exp Pennington [1975] 2 All ER 78 at 81, [1975] QB 549 at 552:

‘There is no better known rule of natural justice than the one that a man shall not be a judge in his own cause. In its simplest form this means that a man shall not judge an issue in which he has a direct pecuniary interest, but the rule has been extended far beyond such crude examples and now covers cases in which the judge has such an interest in the parties or the matters in dispute as to make it difficult for him to approach the trial with the impartiality and detachment which the judicial function requires. Accordingly application may be made to set aside a judgment on the so-called ground of bias without showing any direct pecuniary or proprietary interest in the judicial officer concerned.’

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"An illustration of the approach stated by Lord Widgery CJ and Deane J in respect of a non-pecuniary interest is found in the earlier judgment of Lord Carson in Frome United Breweries Co Ltd v Bath Justices [1926] AC 586 at 618, [1926] All ER Rep 576 at 593 when he cited with approval the judgments of the Divisional Court in R v Fraser (1893) 9 TLR 613. Lord Carson described R v Fraser as one––

‘where a magistrate who was a member of a particular council of a religious body one of the objects of which was to oppose the renewal of licences, was present at a meeting at which it was decided that the council should oppose the transfer or renewal of the licences, and that a solicitor should be instructed to act for the council at the meeting of the magistrates when the case came on. A solicitor was so instructed, and opposed the particular licence, and the magistrate sat on the bench and took part in the decision. The Court in that case came to the conclusion that the magistrate was disqualified on account of bias, and that the decision to refuse the licence was bad. No one imputed mala fides to the magistrate, but Cave J., in giving judgment, said: "the question was, What would be likely to endanger the respect or diminish the confidence which it was desirable should exist in the administration of justice?" Wright J. stated that although the magistrate had acted from excellent motives and feelings, he still had done so contrary to a well settled principle of law, which affected the character of the administration of justice.’

11. For further statement of principle, see Frome United Breweries Co -v- Bath JJ (1926) AC 586, per Viscount Cave LC at page 590,

"My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially ; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of Courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as judges of the rights of others."-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

12. See further clarification of law of bias in Locabail Ltd -v- Bayfield Properties (2000) 1 All ER 65, per Bingham CJ, Woolf MR and Sir Richard Scott VC, at page 69 paras A-J, including intermediate pages to page 74, paras A-J,

"2. In determination of their rights and liabilities, civil or criminal, everyone is entitled to a fair hearing by an impartial tribunal. That right, guaranteed by the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969), is properly described as fundamental. The reason is obvious. All legal arbiters are bound to apply the law as they understand it to the facts of individual cases as they find them. They must do so without fear or favour, affection or ill-will, that is without partiality or prejudice. Justice is portrayed as blind not because she ignores the facts and circumstances of individual cases but because she shuts her eyes to all considerations extraneous to the particular case.

3. Any judge (for convenience, we shall in this judgment use the term ‘judge’ to embrace every judicial decision-maker, whether judge, lay justice or juror) who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the important right to which we have referred and violates one of the most fundamental principles underlying the administration of justice. Where in any particular case the existence of such partiality or prejudice is actually shown, the litigant has irresistible grounds for objecting to the trial of the case by that judge (if the objection is made before the hearing) or for applying . a set aside any judgment given Such objections and applications based on what, m the case law, is called ‘actual bias’ are very rare, partly (as we trust) because the existence of actual bias is very rare, but partly for other reasons also. The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.

4. There is, however, one situation in which, on proof of the requisite facts, the existence of bias is effectively presumed, and in such cases it gives rise to what has been called automatic disqualification. That is where the judge is shown to have an interest in the outcome of the case which he is to decide or has decided. The principle was briefly and authoritatively stated by Lord Campbell in Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759 at 793-794, 10 ER 301 at 315, when orders and decrees made by and on behalf of the Lord Chancellor were set aside on the ground that he had had at the relevant times a substantial shareholding in the respondent company:

‘No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen’s Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.’"

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"7. The basic rule is not in doubt. Nor is the rationale of the rule: that if a judge has a personal interest in the outcome of an issue which he is to resolve, he is improperly acting as a judge in his own cause; and that such a proceeding would, without more, undermine public confidence in the integrity of the administration of justice (see Dimes’ case, in the passage quoted and R v Gough [1993] 2 All ER 724 at 730, [1993] AC 646 at 661 per Lord Goff of Chieveley)."

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"10. While the older cases speak of disqualification if the judge has an interest in the outcome of the proceedings ‘however small’, there has in more recent authorities been acceptance of a de minimis exception: BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers’ Union 1992 (3) SA 673, R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139 at 162 and Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 at 148. This seems to us a proper exception provided the potential effect of any decision on the judge’s personal interest is so small as to be incapable of affecting his decision one way or the other; but it is important, bearing in mind the rationale of the rule, that any doubt should be resolved in favour of disqualification. In any case where the judge’s interest is said to derive from the interest of a spouse, partner or other family member the link must be so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the judge himself.

11. Until recently the automatic disqualification rule had been widely (if wrongly) thought to apply only in cases where the judge had a pecuniary or proprietary interest in the outcome of the litigation. That is what Dimes’ case concerned, although the statement of principle quoted above is not in terms so limited. In R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [1999] 1 All ER 377, [1999] 2 WLR 272 the House of Lords made plain that the rule extended to a limited class of non-financial interests. Lord Browne-Wilkinson said:

‘My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification.

The rationale of the whole rule is that a man cannot he a judge in his own cause. In civil litigation the matters in issue will normally have an economic a impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties.’ (See [1999] 1 All ER 577 at 588, [1999] 2 WLR 272 at 283.)

Lord Browne-Wilkinson added:

‘It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25 November 1998 would lead to a position where judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct. The facts of this present case are exceptional. The critical elements are (1) that Al was a party to the appeal; (2) that Al was joined in order to argue for a d particular result; (3) the judge was a director of a charity closely allied to Al and sharing, in this respect, Al’s objects. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well e advised to disclose a possible interest.’ (See [1999] 1 All ER 577 at 589, [1999] 2 WLR 272 at 284.)

12. The other members of the House agreed that the rule should be extended to the extent indicated, and Lord Hutton observed that:

‘…there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.’ (See [1999] 1 All ER 577 at 597, [1999] 2 WLR 272 at 293.)"

 

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"15. Although disqualification under the rule in Dimes and Pinochet (No 2) is properly described as automatic, a party with an irresistible right to object to a judge hearing or continuing to hear a case may, as in other cases to which we refer below, waive his right to object. It is however clear that any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not.

16. In practice, the most effective guarantee of the fundamental right recognised at the outset of this judgment is afforded not (for reasons already given) by the rules which provide for disqualification on grounds of actual bias, nor by those which provide for automatic disqualification, because automatic disqualification on grounds of personal interest is extremely rare and judges routinely take care to disqualify themselves, in advance of any hearing, in any case where a personal interest could be thought to arise. The most effective protection of the right is in practice afforded by a rule which provides for the disqualification of a judge, and the setting aside of a decision, if on examination of all the relevant circumstances the court concludes that there was a real danger (or possibility) of bias. Until 1993 there had been some divergence in the English authorities. Some had expressed the test in terms of a reasonable suspicion or apprehension of bias: see eg Law v Chartered Institute of Patent Agents [1919] 2 Ch 276 at 290, R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234, Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 3 All ER 304 at 310, 311, 314, [1969] 1 QB 577 at 599, 602, 606, R v Liverpool City Justices, ex p Topping [1983] 1 All ER 490 at 494, [1983] 1 WLR 119 at 123 and R v Mulvihill [1990] 1 All ER 436 at 441, [1990] 1 WLR 438 at 444. This test had found favour in Scotland (Bradford v McLeod 1986 SLT 244), Australia (R v Watson, ex p Armstrong (1976) 136 CLR 248) and South Africa (the BTR Industries case). Other cases had expressed the test in terms of a real danger or likelihood of bias: R v Rand (1866) LR 1 QB 230 at 233, R v Sunderland Justices [1901] 2 KB 357 at 371, R v Camborne Justices, ex p Pearce [1954] 2 All ER 850 at 855, [1955] 1 QB 41 at 51, R v Barnsley County Borough Licensing Justices, ex p Barnsley and District Licensed Victuallers’ Association [1960] 2 All ER 703 at 714, [1960] 2 QB 167 at 186 and R v Spencer, R v Smails [1986] 2 All ER 928, [1987] AC 128. Whatever the merits of these competing tests, the law was settled in England and Wales by the House of Lords’ decision in R v Gough [1993] 2 All ER 724, [1993] AC 646. The gist of that decision is to be found in two brief extracts from the leading speech of Lord Goff. The first is where he said:

‘In my opinion, if in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore, the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose. (See [1993] 2 All ER 724 at 735-736, [1993] AC 646 at 668.)

The second passage is:

‘In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise, I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him ...’ (See [1993] 2 All ER 724 at 737-738, [1993] AC 646 at 670.)

---------------------------------------------------------------------------------------------------------------------------------------------------------"For whatever the merit of the reasonable suspicion or apprehension test, the test of real danger or possibility has been laid down by the House of Lords and is binding on every subordinate court in England and Wales. This test appears to be reflected in s 24 of the Arbitration Act 1996 (see Laker Airways Inc v FLS Aerospace Ltd, FLS Aerospace Ltd v Laker Airways Inc [1999] 2 Lloyd’s Rep 45). In the overwhelming majority of cases we judge that application of the two tests would anyway lead to the same outcome. Provided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well informed member of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done."

13. See further in Locabail Ltd -v- Bayfield Properties (2000) 1 All ER 65, per Bingham CJ, Woolf MR and Sir Richard Scott VC, at page 69 paras A-J, including intermediate pages to page 76, paras B-J, to page 77 paras A-J to page 78 paras C-G,

------------------------------------------------------------------------------------------------------------------------------------------------------------"When in the course of a trial properly embarked upon some such association comes to light (as could equally happen with a barrister-judge), the association should be disclosed and addressed, bearing in mind the test laid down in R v Gough. The proper resolution of any such problem will, again, depend on the facts of the case.

21. In any case giving rise to automatic disqualification on the authority of Dimes’ case and Ex p Pinochet (No 2), the judge should recuse himself from the case before any objection is raised. The same course should be followed if' for solid reasons, the judge feels personally embarrassed in hearing the case. In either event it is highly desirable, if extra cost, delay and inconvenience are to be avoided, that the judge should stand down at the earliest possible stage, not waiting until the eve or the day of the hearing. Parties should not be confronted with a last-minute choice between adjournment and waiver of an otherwise valid objection. If, in any case not giving rise to automatic disqualification and not causing personal embarrassment to the judge, he or she is or becomes aware of any matter which could arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance. We find force in observations of the Constitutional Court of South Africa in President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 at 177, even though these observations were directed to the reasonable suspicion test:

‘It follows from the foregoing that the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.’

22. We also find great persuasive force in three extracts from Australian authority. In Re JRL, ex p CJL (1986) 161 CLR 342 at 352 Mason J, sitting in the High Court of Australia, said:

‘Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.’

23. In Re Ebner, Ebner v Official Trustee in Bankruptcy (1999) 161 ALR 557 at 568 (para 37) the Federal Court asked:

‘Why is it to be assumed that the confidence of fair-minded people in the administration of justice would be shaken by the existence of a direct pecuniary interest of no tangible value, but not by the waste of resources and the delays brought about by setting aside a judgment on the ground that the judge is disqualified for having such an interest?’

24. In the Clenae case [1999] VSCA 35 Callaway JA observed (para 89(e)):

‘As a general rule, it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application.’

25. It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided."----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case,"-----------------------------------------------------------------------------------------------------------------------------------------------------"But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

26. We do not consider that waiver, in this context, raises special problems (Shrager v Basil Dighton Ltd [1924] 1 KB 274 at 293, R v Essex Justices, ex p Perkins [1927] 2 KB 475 at 489, [1927] All ER Rep 393 at 396, Ex p Pinochet (No 2) [1999] 1 All ER 577 at 589-590, [1999] 2 WLR 272 at 285, the Auckland Casino case [1995] 1 NZLR 142 at 150-151 and Vakauta v Kelly (1989) 167 CLR 568 at 572, 577). If, appropriate disclosure having been made by the judge, a party raises no objection to the judge hearing or continuing to hear a case, that party cannot thereafter complain of the matter disclosed as giving rise to a real danger of bias. It would be unjust to the other party and undermine both the reality and the appearance of justice to allow him to do so. What disclosure is appropriate depends in large measure on the stage that the matter has reached. If, before a hearing has begun, the judge is alerted to some matter which might, depending on the full facts, throw doubt on his fitness to sit, the judge should in our view inquire into the full facts, so far as they are ascertainable, in order to make disclosure in the light of them. But if a judge has embarked on a hearing in ignorance of a matter which emerges during the hearing, it is in our view enough if the judge discloses what he then knows."----------------------------------------------------------------------------------------------------------------------------------

14. For "real danger" of bias test, also see judgment of House of Lords in R v Gough (1993) 2 All ER 724, (1993) AC 646.

15. See in particular R v Gough (1993) 2 All ER 724, per Lord Goff at page 737 para J to page 738 paras A-B,

------------------------------------------------------------------------------------------------------------------------------------------------------------

"Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him;"------------------------------------------------------------------------------------------------------------------------------------------------------

16. See further in R v Gough (1993) 2 All ER 724, per Lord Woolf at page 740 paras B-D,

"It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but be seen to be done applies. When considering whether there is a real danger of injustice, the court gives effect to the maxim, but does so by examining all the material available and giving its conclusion on that material."---------------------------------------------------------------------------------------------------------------

 

 

 

 

"NATURAL JUSTICE" AND RESPONDENT’S RIGHT TO BE HEARD UNDER SECTION 42(1) SUPREME COURT 1981

1. Respondent must have full and fair hearing before Divisional Court and must be permitted to argue all of points raised in 2 Respondent's skeleton argument or relating to merits of actions with which they had been concerned with.

2. Divisional Court would act in arbitrary way in imposing any time restrictions in respect of Respondent’s submissions both on law applicable and on merits of individual cases.

3. Common Law principles of "Natural Justice" enacted in section 42(1) Supreme Court Act 1981 which provides :-

-------------------------------------------------------------------------------"the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order"----

4. Provisions for being heard in defence of application under section 42(1) Supreme Court Act 1981 clearly therefore creates condition precedent to making of any valid "Civil Proceedings Order".

5. Any "Civil Proceedings Order" made against Respondent must therefore be rendered a nullity ab initio if Divisional Court refuses him permission to address court on all of points raised Respondent’s skeleton argument and also in relation to merits of his individual cases.

6. Would be a very serious breach indeed, in view of impending implementation of Human Rights Act 1998 on 2 October 2000.

7. This point emphasised in Johnson -v- Valks (2000) 1 All ER 450, per Walker LJ at page 453 para G,

"These questions raise issues of some general importance, not least because of the expected coming into force of the Human Rights Act 1998."

9. This would be tantamount therefore to a denial of "Natural Justice" at common law by being denied "audi alteram partem", see University of Ceylon -v- Ferodo (1960) 1 All ER 631, per Lord Jenkins at page 637 paras H-I to page 638 paras A-F,

‘With these reservations as to the utility of general definitions in this branch of the law, it appears to their Lordships that LORD LOREBURN’S much quoted statement in Board of Education v. Rice (4) still affords as good a general definition as any of the nature of and limits on the requirements of natural justice in this kind of case. Its effect is conveniently stated in this passage from the speech of VISCOUNT HALDANE, L.C. in Local Government Board v. Arlidge (5), where he cites it with approval in the following words:

"I agree with the view expressed in an analogous case by my noble and learned friend LORD LOREBURN. In Board of Education v. Rice (6) he laid down that, in disposing of a question which was the subject of an appeal to it, the Board of Education was under a duty to act in good faith, and to listen fairly to both sides, inasmuch as that was a duty which lay on every one who decided anything."----------------------------------------------------------------------------------------------------

‘From the many other citations which might be made, their Lordships would select the following succinct statement from the judgment of this Board in De Verteuil v. Knaggs (7):

"Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice."

The last general statement as to the requirements of natural justice to which their Lordships would refer is that of HARMAN, J., in Byrne v. Kinematograph Renters Society, Ltd. (8), of which their Lordships would express their approval. The learned judge said this:

"What, then are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more."

10. See also Kanda -v- Government of Malaya (1962) 2 WLR 1153, per Lord Denning at page 1162,

‘Applying these principles, their Lordships are of opinion that inspector Kanda was not in this case given a reasonable opportunity of being heard. They find themselves in agreement with the view expressed by Rigby J. in these words: "In my view, the furnishing of a copy of the findings of the board of inquiry to the adjudicating officer appointed to hear the disciplinary charges, coupled with the fact that no such copy was furnished to the plaintiff, amounted to such a denial of natural justice as to entitle this court to set aside those proceedings on this ground. It amounted, in my view , to a failure to afford the plaintiff a reasonable opportunity of being heard in answer to the charge preferred against him which resulted in his dismissal."’

11. Respondent has right to appear in any proceedings in High Court in person under Order 5 rule 6(1) RSC 1965 which provides,

"Subject to paragraph (2) and Order 80, rule 2, any person (whether or not he sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the High Court by a solicitor or in person."

12. Such rights now enshrined in statute as specifically recognised and preserved by section 27(2)(d) and (6) Courts and Legal Services Act 1990.

13. See also Wiseman -v- Borneman (1971) AC 297, where held that right to "Natural Justice" and audience before court could only be removed by statute and Ridge -v- Baldwin (1964) AC 42, where complete hearing before Watch Committee denied to Chief Constable.

14. See Ridge -v- Baldwin (1964) AC 42, per Lord Reid at pages 66-73 for review of previous decided cases and approval of Hopkins -v- Smethwick Local Board of Health (1890) 24 QBD 712, per Wills J,

 

-------------------------------------------------------------------------------"the judgment of Willes J. [in Cooper's case] goes far more upon the nature of the thing done by the board than on the phraseology of the Act itself. It deals with the case in principle; from the nature of the thing done it must be a judicial act, and justice requires that the man should be heard."

15. This analysis subsequently reviewed and fully approved by House of Lords in Chief Constable of North Wales Police -v- Evans (1982) 3 All ER 141, per Lord Brightman page 153 paras G-I to page 154 paras A-C para H,

16. Analogy with provisions of section 42(1) Supreme Court Act 1981 can be made to observations of Lord Reid in Ridge -v- Baldwin (1964) AC 42, where clarified issue relating to rules of "Natural Justice" being applicable to provisions of section 191(4) Municipal Corporations Act 1882 relating to dismissal of Chief Constables as follows at page 80,

1. -------------------------------------------------------------------------------"The question in the present case is not whether Parliament substituted a different safeguard for that afforded by natural justice, but whether in the Act of 1882 it excluded the safeguard of natural justice and put nothing in its place."

17. See further regarding principles of "Natural Justice" in Ridge -v- Baldwin (1964) AC 42, per Lord Morris at pages 113-114,

-------------------------------------------------------------------------------"It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet: see Kanda v. Government of Malaya. My Lords, here is something which is basic to our system: the importance of upholding it far transcends the significance of any particular case."

18. See further in Ridge -v- Baldwin (1964) AC 42, per Lord Morris at pages 121,

-------------------------------------------------------------------------------"In my view, the regulations incorporate those principles, but had there not been any and had the police authority in the exercise of powers given them by section 191 (4) contemplated dismissing the appellant on the ground of neglect of duty, they could in my view have been under obligation to given him an opportunity to be heard and would have had to consider anything that he might say. I cannot think that the dismissal of the appellant should be regarded as an executive or administrative act if based upon a suggestion of neglect of duty: before it could be decided that there had been neglect of duty it would be a prerequisite that the question should be considered in a judicial spirit."-------------------------------------------------------------------------------------------------

19. See further for review of decided cases in Ridge -v- Baldwin (1964) AC 42, per Lord Morris at pages 122-125 and at page 122,

-------------------------------------------------------------------------------"If it be assumed that no regulations had been made, then the fact that section 191(4) is silent as to any procedure for a hearing does not involve that there could be a dismissal without a hearing. The "justice of the common law" would require it, for, as Byles J. said in Cooper v. Wandsworth Board of Works, "a long course of decisions, beginning with Dr. Bentley's case, and ending with some very recent cases, establish, that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature."

20. See further in Ridge -v- Baldwin (1964) AC 42, per Lord Morris at page 124,

"Being of the view that, even if there had been no applicable regulations, a decision to dismiss the appellant for neglect of duty ought only to have been taken in the exercise of a quasi-judicial function which demanded the observance of the rules of natural justice––I entertain no doubt that such rules were not observed."

21. See also in Ridge -v- Baldwin (1964) AC 42, per Lord Hodgson at pages 132-133,

"The matter which to my mind, is relevant in this case is that where the power to be exercised involves a charge made against the person who is dismissed, by that I mean a charge of misconduct, the principles of natural justice have to be observed before the power is exercised."--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"No one, I think, disputes that three features of natural justice stand out––(1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges. The first does not arise in the case before your Lordships, but the two last most certainly do, and the proceedings before the watch committee, therefore, in my opinion, cannot be allowed to stand."--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"I cannot see that the general words of the statute are, in the light of the authorities as I understand them, wide enough to cover a case of this character where allegations of misconduct are involved resulting in the loss of an office and an element of punishment for offences committed. There is imposed a clog on the discretion in that it cannot be exercised arbitrarily without regard to natural justice."-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"I must retreat to the last refuge of one confronted with as difficult a problem as this, namely, that each case depends on its own facts, and that here the deprivation of a pension without a hearing is on the face of it a denial of justice which cannot be justified upon the language of the section under consideration."

22. Approach adopted by House of Lords in Ridge -v- Baldwin (1964) AC 42, subsequently approved of and applied by House of Lords in Chief Constable of North Wales Police -v- Evans (1982) 3 All ER 141 regarding arbitrary request to resign of Probationary Constable by Chief Constable without giving any reasons or opportunity to comment on that issue.

23. See Chief Constable of North Wales Police -v- Evans (1982) 3 All ER 141, per Lord Hailsham at page 144 paras C-D,

-------------------------------------------------------------------------------‘The Chief Constable should have directed his mind to the criteria laid down in the regulation in accordance with the appropriate principles of natural justice. He did not do so, and I think it only too likely that this was precisely the belief that his discretion was absolute which led to the cavalier treatment to which, in any event, the respondent was subjected."

To this treatment I now come. Once it is established as was conceded here, that the office held by the chief constable was of the third class enumerated by Lord Reid in Ridge v Baldwin [1963] 2 All ER 66 at 72. [1964] AC 40 at 66, it becomes clear, quoting Lord Reid, that there is ‘an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation’."

24. Also recently held that principles of "Natural Justice" apply to Pensions Ombudsman in Seifert and anor -v- Pensions Ombudsman and anor (1997) 1 All ER 214, applying Duffield -v- Pensions Ombudsman (1996) Times Law Report 30 April.

25. Again, analogy with provisions of section 42(1) Supreme Court Act 1981 can be gleaned from Seifert and anor -v- Pensions Ombudsman and anor (1997) 1 All ER 214, per Lightman J at page 222 paras G-H and page 223 para A,

-------------------------------------------------------------------------------"In these circumstances, (a) it is mandatory that the ombudsman comply with the statutory procedure contained in s 149(1) designed to ensure fairness; and (b) further the ombudsman must comply with the principles of natural justice (see Duffield v Pensions Ombudsman (1996) Times, 30 April). These require of him; (i) that he make quite clear to the appellants the specific allegations made in the complaint and to be investigated and of any amendment of the allegations for which he gives leave."--------------------------------------------------------------------------------------------------------------------------------------------------------------------

"The Respondents must know at least the gist of what he has learnt, so as to enable them to have a fair crack of the whip and a fair opportunity to provide any answer they may have. Whilst the procedure before the ombudsman is intended to be quick, inexpensive and informal, these are the minimum requirements for fairness and accordingly for a decision that can be allowed to stand."

 

 

 

 

VALIDITY OF APPLICATION FOR "CIVIL PROCEEDINGS ORDER" AGAINST RESPONDENT

 

VALIDITY OF HM SOLICITOR-GENERAL'S AUTHORISATION FOR APPLICATION FOR "CIVIL PROCEEDINGS ORDER" UNDER SECTION 42(1) SUPREME COURT ACT 1981

 

VALIDITY OF THEN LAW OFFICERS’ AUTHORISATION FOR APPLICATION FOR "CIVIL PROCEEDINGS ORDER" AGAINST 2 APPELLANT UNDER SECTION 42(1) SUPREME COURT ACT 1981

1. Not conceded by Respondent that HM Solicitor-General actually personally considered papers in case before purportedly authorising application for "Civil Proceedings Order" against him.

2. No actual evidence before court that HM Solicitor-General actually considered Respondent’s case file before deciding whether to proceed with application.

3. There is therefore insufficient evidence before Divisional Court that HM Solicitor-General considered matter before authorising proceedings to be brought.

4. Law Officer must personally authorise application to be "made" under section 42(1) Supreme Court Act 1981, as is condition precedent that application "made" by HM Attorney-General by HM Solicitor-General on his behalf.

5. Clearly incumbent on Respondent to proved that application properly "made" once issued raised by Respondent.

6. See Re Boaler (1915) 1 KB 21, Scrutton LJ at page 37,

------------------------------------------------------------------------------------------------------------------------------------------------------------"if the Attorney General satisfies the court that any person has habitually and persistently instituted vexatious legal proceedings"----------------------------------------------------------------------------------------------------------------------------------------------

7. See also Ebert -v- Venvil (1999) 3 WLR 670, per Woolf MR at page 674 para B,

--------------------------------------------------------------------------------"An order under section 42 is, however, subject to safeguards, the application has to be made by the Attorney-General"-------------------------------------------------------------------------------------------------------------------------------------------------------------------------

8. Otherwise application brought without jurisdiction, see R -v- Bates (1911) 1 KB 946, per Lord Alverstone CJ at page 946,

------------------------------------------------------------------------------------------------------------------------------------------------------------"Our attention has been called to the fact that an indictment under s. 2 of the Explosive Substances Act, 1883, was preferred against the appellant without the consent of the Attorney-General having been obtained as is required by s. 7 of the Act. That point is not raised by the appellant in his notice of appeal, but we should have allowed him to raise it if he had been present, and we must deal with it now as if it in fact had been raised. In our opinion the failure to obtain the consent of the Attorney-General deprived the Court of any jurisdiction to try the prisoner on the indictment, and that being so, the conviction must be quashed."----------------------------------------------------------------------------------------------------------------------------------------------------------------

9. See also R -v- Waller (1910)1 KB 364, per Lord Alverstone CJ at page 367,

--------------------------------------------------------------------------------------------------------------------------------------------------------------"The principle of that decision equally applies to the consent of the Director of Public Prosecutions under the present Act. If objection is taken by the prisoner the question will arise in each particular case as to the evidence which the Court will require to satisfy itself whether there is any ground for the objection,, and then the principle which this Court laid down in Rex v. Turner (2) as to the way in which the consent may be proved will apply."-----------------------------------------------------------------------------------------------------------------------------------------------------

10. In any event, no evidence before Divisional Court in Treasury Solicitor Mr Rodger Lutterodt’s Witness Statement signed on 14 April 2000 at pages 1-2 para 1, has any personal knowledge of matters deposed to relating to involvement of HM Solicitor-General.

11. For consequences of affidavit were deponent swears to matters which he has no direct knowledge, see Barclays Bank plc -v- Piper CA transcript 23 May 1995, per Roch LJ at page 11 paras C-G to page 12 Para A,

-------------------------------------------------------------------------------

"The second Affidavit does not make clear from which source Mr Harper received particular information. I would accept the submissions of Mr Stanton that Order 14 Proceedings, because they may deprive a defendant of his opportunity to defend a plaintiff’s claim and in particular the opportunity of hearing and cross examining the plaintiff’s witnesses, make it all the more necessary that the technical requirements of an Affidavit in support of the application for Summary Judgment should be observed, so that a defendant and the Court can assess whether the information or belief as to the material matters on which the plaintiff’s claim is based were derived directly or indirectly from persons who could be expected to have the necessary knowledge or be the keepers of the necessary documents. Order 14 proceedings are quite unlike applications for Interlocutory Injunctions in which liberty to the defendant to apply to set aside the Order will be a standard term. An Order 14 Judgment finally disposes of the Action, in a summary manner. The purpose of the rules relating to the contents of the affidavit in support is to ensure that the plaintiffs have demonstrated that the case is a proper case for summary judgment. In this case it should have been simple for the Bank’s solicitor to obtain the necessary information from persons having first hand knowledge of the appellant’s loan account."

 

 

 

 

STANDARD OF BURDEN OF PROOF APPLICABLE RELATING TO CONSENT OF HM SOLICITOR-GENERAL

1. Court must be satisfied that HM Solicitor-General lawfully authorised substantive application for "Civil Proceedings Order", before Order can be applied for with jurisdiction.

2. For example of affidavit setting out direct evidence of status and capacity of person making it in order to make application for winding up of company, see In Re Golden Chemical Products Ltd (1976) 1 Ch 300.

3. See In Re Golden Chemical Products Ltd (1976) 1 Ch 300, per Brightman J at page 311 paras D-E,

--------------------------------------------------------------------------------------------------------------------------------------------------------------"Mr. Chadwick submitted that the affidavit was the truth and nothing but the truth, but he conceded that it was not the whole truth. This difficulty was anticipated by the department and Mr. Chadwick came to court ready armed with a supplementary affidavit in which Mr. Gill described his position in the department, deposed that he was entrusted with the section 35 power and explained that he was the officer of the department to whom it appeared expedient in the public interest that the company should be wound up. In my view this is the preferable form of affidavit for use in verifying a petition of this sort."

4. Treasury Solicitor Affidavit sworn on fails to satisfy standard of proof applicable to such applications, see Attorney-General -v- Hayward (1995) 10 November 1995, Supreme Court Library transcript, per Henry LJ at page 13 para D to page 15 para F, and Pill LJ at page 25 para G to page 26 para D and Staughton LJ at page 26 para E to page 27 para A.

5. Court must however be satisfied on a high standard of balance of probabilities, see Attorney-General -v- Hayward CA transcript 10 November 1995, per Henry LJ at pages 10 para G to page 12 para C, and in particular approving standard of proof approved of in R -v- Secretary of State for the Home Department ex parte Khawaja (1984) AC 74, at page 11 paras A-B,

-------------------------------------------------------------------------------"Having regard to all the authorities to which we have been referred, culminating in the case of R -v- Secretary of State for the Home Department ex parte Khawaja (1984) AC 74, I am satisfied that the proper standard of proof here is the civil standard, paying proper regard to the seriousness of the issue at stake."-----------------------------------------------------------------------

 

 

 

 

CRITERIA THAT EVIDENCE FROM HM SOLICITOR-GENERAL MUST SATISFY

1. Treasury Solicitor Mr Affidavit sworn on at page para on its face failed to satisfy criteria approved in Attorney-General -v- Hayward CA transcript 10 November 1995, per Pill LJ at page 25 para G to page 26 paras A-D, and in particular paras C-D,

"However, in any future applications under section 42, care should in my view be taken that appropriate information is provided in the affidavit in support of the application. An application under section 42 can have serious consequences, and the Attorney-General's involvement required by statute should be demonstrated plainly in the evidence submitted to the court with the application."

2. This principle relating to both jurisdiction of Court to make "Civil Proceedings Order" and evidence in support of it to show relevant involvement of HM Solicitor-General as required by section 42(1) Supreme Court Act 1981, again reinforced and applied in Attorney-General -v- Williams DC transcript CO/905/95 April 22 1996, (1996) COD 386, Crown Office List transcript.

3. See Attorney-General -v- Williams DC transcript CO/905/95 April 22 1996, per Pill LJ at page 2 paras D-F,

"There is evidence by way of affidavit before the court that a law officer has personally considered the papers in this case and authorised the making of the application. Bearing in mind the fundamental right under consideration, the right to bring proceedings before the courts, it is, in my view, appropriate that personal consideration is given to any proposed application by a law officer and that evidence of such consideration appears in the material before the court."

4. Should therefore be evidence before Divisional Court with full affidavits from HM Solicitor-General who has direct personal knowledge of consideration of papers.

5. Therefore contended that no jurisdiction at all for Divisional Court to make "Civil Proceedings Order" against Respondent without sufficient proof of proper consideration of papers, and no evidence that application therefore "made" by Solicitor-General for purposes of section 42(1) Supreme Court Act 1981.

6. Contended that any Order made on present evidence rendered nullity ab initio as result, and must be set aside ex debito justitiae.

 

 

 

DUTY OF DIVISIONAL COURT TO ENQUIRE THAT IT IS PROPERLY CONSTITUTED

COURT

1. Contended that court has inherent power and duty to see that court properly constituted, see Deutsche Bank und Disconto Gesellschaft -v- Banque de Marchands de Moscou (1938) LT Vol 158 364.

2. See Deutsche Bank und Disconto Gesellschaft -v- Banque de Marchands de Moscou (1938) LT Vol 158 364, per Scrutton LJ at pages 366,

‘But what is the court to do if it has reason to believe that the defendant does not exist or that the appearance is entered without authority, but the parties do not raise the question or provide evidence on which it can be decided? Lord Parker of Waddington, in Daimler Company Limited v. Continental Tyre and Rubber Company (Great Britain) Limited (114 L. T. Rep. at p. 1058; ) 2 A. C. at p.33.) said: "But when the court in the course of an action becomes aware that the plaintiff is incapable of giving any retainer at all, it ought not to allow the action to proceed."---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"Of course, the defendants’ legal representative did not raise the question whether the defendant existed. Equally, of course, the plaintiffs who wanted the judgment for use in garnishee proceedings did not question the existence of the defendant. In consequence, no Russian decrees were given in evidence before the court in this case, though every member of the court had had them proved in other proceedings"---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"What, then, is the court to do? It must be remembered that the court is not a mere machine to decide such issues, genuine, fictitious or collusive as the parties choose to put before it, on such evidence, complete or incomplete, as they choose to put before it, without any power of inquiry into the truth of the matters and of investigating whether the judgment is to be used for purposes for which it could not be used if the real facts were known."-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"I think the court should, in this case, take similar steps to see that on the question whether this Russian bank really exists it has the proper evidence before it."

3. See further in Deutsche Bank und Disconto Gesellschaft -v- Banque de Marchands de Moscou (1938) LT Vol 158 364, per Greer LJ at pages 366-367,

"I agree with my Lord that we ought not to give a final judgment in this case until our reasonable doubts as to the existence of the defendant corporation and the authority of the solicitors and counsel who have argued the appellants’ case to represent the defendant corporation if it still exists as a juristic person have been confirmed or removed."---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"If on inquiry this should be again proved, this action with which this appeal is concerned would be a purely hypothetical action in which it was sought to obtain a decision in the air, as it were, without the presence of any real defendant."----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"But this rule can have no application where the existence of a hypothetical defendant and the authority of those who purport to appear for it is deliberately excluded by the apparent parties who both desire for ulterior purposes that the existence of the defendant company and their authority to act for it should be admitted, and judgment should be obtained for one or other of the alleged parties. It is obvious that in such circumstances the court has inherent power to prevent an abuse of its processes, and to make such order as it deems necessary to ascertain the truth on these essential points. If any authority be required in support of this view it will be found in the case of Harbin v. Masterman (73 L. T. Rep. at p. 396; (1896) 1 Ch. at p. 365)."

4. Finally, see in Deutsche Bank und Disconto Gesellschaft -v- Banque de Marchands de Moscou (1938) LT Vol 158 364, per Romer LJ at page 367,

"When the appeal was opened it was of course, apparent that we were to be asked to deal with it upon the same footing as before. In other words, we were being asked to treat a defendant as being alive and properly represented before the court when we have strong grounds for suspecting that he may be neither the one nor the other. This is not a position that any litigant is justified in asking the court to assume, and in my opinion we are not only entitled but in the interests of the proper administration of justice, we are bound to take steps to see that we do not so stultify ourselves."-------------------------------------------------------------------------------------------------------------------------------------------------

 

 

 

CANNON OF STATUTORY CONSTRUCTION APPLICABLE TO SECTION 42 SUPREME COURT ACT 1981 AND MEANING OF "MADE" IN SECTION 42(1) SUPREME COURT ACT 1981

1. Literal strict interpretation must be given to section 42 Supreme Court Act 1981. Statutes removing rights of citizen to be interpreted as though were penal statute.

2. See Maxwell on Statutes, 12 Edition pages 251-252, and Walsh -v- Secretary of State for India (1863) 10 HLC 367, per Lord Westbury LC and Hugh -v- Windust (1884) 12 QBD 224, per Bowen LJ.

3. See also Bennion on Statute Law 3rd Edition by Francis Bennion at pages 149-150, "Impairment of rights in relation to law and legal proceedings".

4. Removal of legal remedies to be strictly construed and this must apply to provisions of section 42(1A)(a)(b)(c) and (3) Supreme Court Act 1981, see Boulting -v- Association of Cinematograph, Television and Allied Technicians (1963) 2 QB 606.

5. Same approach would apply to phrases "made" and also "reasonable grounds" in section 42(3) Supreme Court Act 1981 to give a broader and more lenient meaning more favourable to Respondent.

6. Further if any ambiguity in statute, more lenient interpretation should be given in favour of subject, see David -v- Da Silva (1934) AC 106, and Wonderland Cleathorpes (1965) AC 58, per Viscount Simmons at page 71 and D'Avigdor-Goldsmid -v- Inland Revenue Commissioners (1953) AC 347.

7. Mischief rule inapplicable to penal statutes, see London & County Commercial Properties Investments Ltd -v- Attorney-General (1953) 1 WLR 312, per Upjohn J page 319, and Tuck & Sons -v- Priester (1887) 19 QBD 629, page 638 and Plowman J in Re HPC Productions Ltd (1962) Ch 466, page 486, and Lord Tomlin in ICR -v- Duke of Westminster (1936) AC 1.

8. Attorney-v- Jones (1990) 2 All ER 636 wrongly decided that mischief rule applied to interpretation of section 42 Supreme Court Act 1981, per Donaldson MR at page 638 para H.

9. This dictum not binding on any subsequent Court of Appeal, or lower court as either decided per incuriam, see W A Sharratt Ltd -v- John Bromley Church Stratton Ltd (1985) QB 1038 regarding cannon of interpretation applicable, or in conflict with Re Boaler (1915) 1 KB 21 which may be equally binding on Court of Appeal and Divisional Court.

10. Re Boaler (1915) 1 KB 21 authority on interpretation of meaning of "legal proceedings" which given restrictive meaning to excluding criminal proceedings in Vexatious Actions Act 1896 which statutory predecessor of section 42 Supreme Court Act 1981, and apart from some amendments, is consolidating statute.

11. Re Boaler (1915) 1 KB 21 approved by Court of Appeal in Ex parte Ewing (No 2) (1994) 1 WLR 1553, per Bingham MR at page 1558 para F-G.

"The principle of construction for which Mr Ewing contends is sound."

12. Attorney-v- Jones (1990) 2 All ER 636 regarding approach to interpretation to section 42 Supreme Court Act 1981 may be by implication overruled in any event by approval of Re Boaler (1915) 1 KB 21 in Ex parte Ewing (No 2) (1994) 1 WLR 1553

13. In construing consolidating Act, Parliament presumed not to alter existing law, see Gilbert -v- Gilbert (1928) P 1, per Scrutton LJ and R -v- Governor of Brixton Prison ex parte De Demko (1959) 1 QB 268, per Lord Evershed MR.

14. Also presumption that words in present statute bear same meanings as former, see Crook -v- Edmondson (1966) 2 QB 81, and therefore cannon of interpretation applied in Re Boaler (1915) 1 KB 21 still applicable to whole of section 42 Supreme Court Act 1981.

15. Authorities considered and fully discussed in Maxwell on the Interpretation of Statutes 12th Edition at pages 20-25.

16. Strict literal rule applicable to abrogation of rights of citizens applied in Re Boaler (1915) 1 KB 21, per Kennedy LJ pages 34-35,

"But if it includes an abridgement of the rights of the subject in regard to redress for crimes committed in regard to his person or his property, one would, I venture to think justly expect the Legislature, instead of using words of general import, to make it quite clear that criminal proceedings were intended to be included in the enactment. "Statutes which encroach on the rights of the subject whether as regards person or property, are similarly" (the learned author has in the preceding chapter been dealing with the construction of Penal Acts)" subject to a strict construction..... It is a recognised rule that they should be interpreted, if possible, so as to respect such rights." (Maxwell on the Interpretation of Statutes, 5th ed. p 461.)’

17. See principle further expounded in Re Boaler (1915) 1 KB 21, per Scrutton LJ pages 38-39,

-------------------------------------------------------------------------------"a strict construction of penal laws, or statutes encroaching on rights, especially the liberties of the subject, or imposing burdens; all are cases where general words have been cut down to a narrower meaning in endeavouring to seek the intention of the Legislature, not from the widest meaning of the words used, but from the considerations that must have influenced Parliament in framing the enactment."-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"In the case of this statute the Legislature clearly intends to interfere with some rights of persons, and uses words capable of extension to rights of litigation in criminal matters, but in my opinion more suitable to the subject-matter of rights of litigation in civil matters only. In my view, looking at the enacting parts of the statute only, the presumption against interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to that meaning which effects the least interference with those rights."

18. Again in Re Boaler (1915) 1 KB 21, per Scrutton LJ page 41 principle overwhelmingly applied to construction of Act,

"I decline to make this more serious interference with the liberty of the subject, unless the Legislature uses language clear enough to convince me that that was its intention, and I think ample meaning is provided for its words, and ample remedy is provided for the grievance in respect of which Parliament was legislating by putting the narrower construction on the general words it has used."

19. Contended therefore that strict literal interpretation should be given to word "made" in section 42(1) Supreme Court Act 1981, and that if ambiguous, least onerous and favourable meaning should be given in favour of Respondent.

 

 

 

CHALLENGING DECISION TO APPLY FOR "CIVIL PROCEEDINGS ORDER" OF HM SOLICITOR-GENERAL

1. Contended that decision of HM Solicitor-General to make application for "Civil Proceedings Order" against Respondent, arbitrary oppressive and abuse of process of court.

2. No prima facie evidence before Divisional Court that HM Solicitor-General has acquainted himself personally with facts of Respondent’s case, see Treasury Solicitor Mr Stephen Glendinning’s Affidavit sworn on 9 November 1998 at page 2 para 2.

3. Treasury Solicitor Mr Stephen Glendinning’s Affidavit specifically fails to mention anything at all regarding personal consideration of merits of proposed application to Divisional Court against Respondent.

4. See also test approved by House of Lords in Gouriet and ors -v- Attorney-General and ors (1977) 3 All ER 70, per Viscount Dilhorne page 89 para J to page 90 para A,

‘However clear it appears to be that an offence has been committed, it is, as Sir Hartley Shawcross then Attorney-General said in 1951, the Attorney-General's duty "in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public opinion morale and order." (See Edwards, p. 223.)

This approach which the Attorney-General should make when considering whether a prosecution should be started, is in my opinion the kind of approach he should have made to the question of giving his consent to Mr. Gouriet’s application.’--------------------------------------------------------------------------------------------------------------------------------------------------------------------"In the discharge of any of the duties to which I have referred, it is, of course, always possible that an Attorney-General may act for reasons of this kind and may abuse his powers."

5. See also Attorney-General -v- Williams DC transcript CO/905/95 April 22 1996 (1996) COD 386, per Pill LJ, where held that it appropriate for evidence to be before court that Law Officer had considered papers in case and had given merits of application his personal consideration, as well as simply his consent for making of application, due to nature of Order regarding fundamental right to bring proceedings before courts.

6. Prejudicial and tarnishing effect of the making of "Civil Proceedings Order" was illustrated in HM Attorney-General -v- Cutler CA transcript 87/1268 5 November 1987, per Woolf LJ at page 5 para H to page 6 paras A-B,

-------------------------------------------------------------------------------"Nonetheless it is right that this court should bear in mind that an order under section 42 of the Supreme Court Act 1981 is a formidable one which should not be taken lightly by any court, because it restricts a particular litigant in a way in which the remainder of the public are not restricted. Therefore to that extend it impinges upon his rights as an individual and reflects upon him as a citizen."

7. As result of effect of any "Civil Proceedings Order" against Respondent, must therefore have been essential that merits of proposed application was properly considered by HM Solicitor-General, and whether in public interest that application should be brought at all.

8. Respondent contends that no proper evidence before Divisional Court that HM Solicitor-General has personally considered papers in case and merits of application, then difficult to see how application for "Civil Proceedings Order" could be said to be "made by Attorney- General" under section 42(1) Supreme Court Act 1981.

9. Respondent contends that even if evidence currently before Divisional Court that HM Solicitor-General authorised application, any "Civil Proceedings Order" would still therefore be nullity ab initio, if personal consideration not given to papers and merits of application as not therefore application of HM Solicitor-General on behalf of HM Attorney-General under section 1(1)(2) Law Officers Act 1997, and brought without locus standii.

10. Therefore application for "Civil Proceedings Order" complete misuse of statutory powers for ulterior purpose that not original intention of section 42 Supreme Court Act 1981.

11. See Municipal Council of Sydney -v- Campbell and ors (1925) AC 338, per Duff J.

"A body such as the Municipal Council of Sydney, authorised to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the courts will interfere. As Lord Loreborn said, in Marquess of Clanricarde v. Congested Districts Board (1914) 79 J.P. 481: "Whether it does so or not is a question of fact."

12. Respondent contends that court in special circumstances of present application, should review actions of HM Solicitor-General who should be accountable before courts for their actions regarding applications for Civil Proceedings Orders under section 42(1) Supreme Court Act 1981 in any event as matter of principle.

13. Gouriet and ors -v- Attorney-General and ors (1977) 3 WLR 300 and R -v- Solicitor-General ex parte Taylor (1996) 8 Admin LR 206, (1996) COD 61, not therefore relevant to this kind of case due to nature of Order being obtained, apart from reference in Gouriet and ors -v- Attorney-General and ors (1977) 3 All ER 70, per Viscount Dilhorne page 89 para J to page 90 para A.

14. Contended that same principles for review of HM Solicitor-General regarding applications for Civil Proceedings Orders should apply as approved by House of Lords in Council of Civil Service Unions -v- Ministry for the Civil Service (1985) AC 374, per Lord Diplock at page 410 para D,

"By ‘illegality’, I mean that the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it"-----------------------------------------------------"by ‘irrationality’, I mean ‘Wednesbury' unreasonableness"--------------------------------------------------------------------------------------"I have described the third head as ‘procedural impropriety’ rather than a failure to observe the basic rules of natural justice."

15. This even more so in view of observations of Pill LJ in Attorney-General -v- Williams DC transcript CO/905/95 April 22 1996, (1996) COD 386.

 

 

 

 

WHETHER RESPONDENT HAS SATISFIED CRITERIA FOR MAKING OF "CIVIL PROCEEDINGS ORDER"

1. Before Divisional Court considers whether to make a "Civil Proceedings Order" against Respondent, Claimant must show that he has "habitually and persistently and without any reasonable ground" "instituted vexatious civil proceedings" etc., under section 42(1)(a)(b) Supreme Court Act 1981.

2. See Attorney-General -v- Barker DC transcript CO/4380/98 16 February 2000, where court held that although Respondent’s proceedings where vexatious they did not satisfy test of "habitual and persistent" with result that Order declined.

3. See Attorney-General -v- Barker DC transcript 16 February 2000, per Bingham CJ at paras 19-23,

‘19. I am satisfied on the facts adduced in evidence before us that Mr Barker has instituted vexatious civil proceedings. "Vexatious" is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process. Those conditions are in my view met in this case. Many of the proceedings show no justiciable complaint and, as has been pointed out, several writs have been issued against individual officers in the same department when one writ would have served against them all.

20. I am furthermore satisfied that these vexatious civil proceedings have been instituted without any reasonable ground. All the proceedings have been struck out; none has gone to trial; none has been settled. Leave to appeal against Alliott J’s striking-out order in relation to the 19 actions was refused. In truth, none of these actions could have succeeded.

21. The calendar does, however, reveal that from the issue of the first bunch of eight writs on 15 December 1997 to the issue of the last County Court summons on 18 March 1998 was a three-month period within which this flurry of litigious activity was confined. Only one person, a solicitor, Mr Ryall, was sued more than once. While writs were issued against individual officers of the Hertfordshire County Council, the County Council itself was only sued once.

22. From extensive experience of dealing with applications under section 42 the court has become familiar with the hallmark of persistent and habitual litigious activity. The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop.

23. Mr Tam acknowledges that the words "habitually and persistently" connote an element of repetition, but says that that repetition need not be over a long period. I would accept that qualification, but there must nevertheless be that element of repetition and in my judgment it is not shown here. I would accordingly hold that the conditions for making an order under section 42(1) are not satisfied.’------------------------------------------------------------------------------------------------------------------------

4. This principle again applied in Attorney-General -v- Bishop DC transcript CO 933/98 5 July 2000, where Respondent’s activities satisfied Barker test.

5. See Attorney-General -v- Bishop DC transcript 5 July 2000, per Laws LJ at para 63,

------------------------------------------------------------------------------------------------------------------------------------------------------------

"It seems to me however that it is wholly incontrovertible that in this case the respondent, Mr Bishop, has in truth persistently and without any reasonable ground instituted vexatious civil proceedings and made vexatious applications in civil proceedings. He has sought to relitigate, time and again, matters that have been decided against him and which, for all the world, are entirely finalised."

6. This test also supported by other dicta relating to interpretation of "habitual and persistent" in other statutes.

7. For interpretation of "persistent" see R -v- Kelly (1910) 74 JP 167 where held that gaps in activity not "persistent", with same principle applied in R -v- Baggott (1910) 74 JP 213.

8. See also Barker -v- Barker (1949) P 219, per Lord Merriman at page 221 regarding criteria for "persistently" being repetitious.

9. See further in Dale -v- Smith (1967) 1 WLR 700, per Parker CJ at page 704 paras G-H relating to "persistently" importuning, denoting degree of repetition of particular acts of same character.

10. For interpretation of "habitually" see Australian case of Dias -v- O’Sullivan (1949) ALR 586 per Mayo J, at page 589,

"‘Habitually" requires a continuance and permanence of some tendency, something that has developed into a propensity that is present from day to day. A habit results from a condition of mind that has become stereotyped. In terms of conduct its presence is demonstrated by the frequency of acts that by repetition have acquired the characteristics of being customary a usual: behaviour that is to be regarded as almost inevitable when the appropriate conditions are present. The tendency will ordinarily be required to be demonstrated by numerous instances of reiteration’.

11. See also Re D (Minors)(1973) 3 All ER 1001, per Sir George Baker at page 1006 regarding criteria being culpability to a high degree and connoting some element permanent conduct.

12. See further in Ounddjian -v- Ounddjian (1979) 124 SJ 63, implying "habitual" connotes settled practice and usual conduct.

13. There may be cases where institution of civil proceedings were not "habitual" but were "persistent" and vice versa, and where that occurs then criteria for making "Civil Proceedings Order" also not made out.

14. Clearly separate meanings attached to both "habitual" and persistent" and both not necessarily mutually reliant on each other.

 

 

 

MEANING OF "VEXATIOUS"

1. An action is also not necessarily to be classified as being "vexatious" simply because the party bringing it looses the case.

2. See Attorney-General -v- Tejendrasingh CA transcript LTA 97/6020/4 12 May 1998, per Schiemann LJ at page 4,

------------------------------------------------------------------------------------------------------------------------------------------------------------"That does not mean to say that every application that he has lost is necessarily a vexatious application; that is an entirely separate question. You can lose an application without having been vexatious in making it. In most actions one of the litigants loses the point, but has not necessarily behaved vexatiously in taking the point."

3. Also see Attorney-General -v- Stamoulakatos DC transcript CO/105/2000 7 March 2000, per Schiemann LJ at para 7,

------------------------------------------------------------------------------------------------------------------------------------------------------------"Now those civil actions cover quite a long period of time against a number of different defendants, but it is quite clear, even from that list, that at least some of them had been successful. Others may well have been unsuccessful, but to bring an unsuccessful action is not necessarily to be vexatious; people are always losing actions without rendering themselves liable to this type of proceedings. So we have looked merely at some of them in detail in order see whether the Attorney General has proved his case."

4. This view supported by various definitions of "vexatious" as meaning an action that could not possibly succeed or would result in no possible good, see Dyson -v- Attorney-General (1911) 1 KB 410, per Fletcher Moulton LJ at pages 418-419.

5. Similar definitions found in Lawrence -v- Norreys (1888) 39 Ch D 213, affirmed (1890) 15 App Cas 210, per Lord Hershell at page 219 where court could not grant relief sought, and Logan -v- Bank of Scotland (No 2) (1905) 1 KB 151.

6. See also Metropolitan Bank -v- Pooley (1885) 10 App Cas 210 at pages 220-1, Willis -v- Earl Beauchamp (1886) 11 PD 59, Dreyfus -v- Peruvian Guano Co (1889) 41 Ch D 151, Byrne -v- Brown (1889) 22 QBD 666, Wing -v- Burn (1928) 44 TLR 258, and Re Visser the Queen of Holland -v- Drukker (1928) 1 Ch 877.

7. "Vexatious" also means cases which are obviously frivilous or vexatious or obviously unsustainable, see Attorney-General of Duchy of Lancaster -v- L @ NW Ry (1892) 3 Ch 274, per Lindlay LJ at page 277, Kellaway -v- Bury (1892) 66 LT 602, Bean -v- Flower (1895) 73 LT 371, Day -v- William Hill (Park Lane) Ltd (1949) 1 KB 632, and Law -v- Dearnley (1950) 1 All ER 124.

8. For full resume of general principles applicable to actions being struck out under Order 18 rule 19 RSC, see annotated notes to that Order in Supreme Court Practice 1999 Vol 1.

9. Finally, for comprehensive definition of "vexatious" see Norman -v- Mathews (1916) 88 LJKB, per Lush J at page 859,

"Was the case one which the County Court Judge was justified in treating as frivolous and vexatious? In my opinion it was clearly such a case. In order to bring a case within the description it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide and contend that he had a grievance which he was entitled to bring before the Court."

 

 

 

WHETHER DIVISIONAL COURT SHOULD MAKE "CIVIL PROCEEDINGS ORDER" IN ITS DISCRETION

1. Divisional Court has full discretion not to make a "Civil Proceedings Order" even though Respondent may have satisfied criteria in section 42(1)(a)(b) Supreme Court Act 1981?

2. This implied by word "may"---------"make a civil proceedings order" in section 42(1) Supreme Court Act 1981.

3. For statement of principle, see Attorney-General -v- Tejendrasingh DC transcript CO/4113/96 10 April 1997, per McCowan LJ at page 9,

"This Court has given the Respondent the opportunity of being heard, but it is not obliged by the section to make an order. What the section is saying is, if the Court is satisfied that the actions and the applications are vexatious, the Court may make an order. So plainly, this Court has a discretion."

4. Also see Attorney-General -v- Haralabidis DC transcript CO/2792/97 28 November 1997, per Schiemann LJ at page 12,

------------------------------------------------------------------------------"However, the Court has a jurisdiction, and a discretionary jurisdiction, as to whether or no to make such an Order and I have applied my mind to whether or no the present is a case where an Order ought to be made."------------------------------------------------

5. Also see Attorney-General -v- Drozdowski DC transcript CO/2728/97 6 April 1998, per Rose LJ at page 1,

"Before such an order can be made, the court must be satisfied that he has habitually and persistently and without any reasonable ground, instituted vexatious civil proceedings, made vexatious applications in civil proceedings or instituted vexatious prosecutions. In the event that the court is satisfied in relation to those matters, the court has a discretion, after hearing the person against whom the order is sought or giving him the opportunity of being heard, to make, as is sought in the present case, an all proceedings order."

6. In Attorney-General -v- Armistead DC transcript CO/3501/96 24 November 1997 application was adjourned indefinitely depending on whether Respondent engaged in further vexatious proceedings.

7. In Attorney-General -v- Parlett DC transcript CO/2606/98 5 October 1999 the application was again adjourned for 12 months for similar reasons.

8. See in relation to nature of section 42 proceedings being "draconian" in Attorney-General -v- Parlett DC transcript 5 October 1999, per Laws LJ at paragraph 1.

"Before us this morning is listed an application under section 42 of the Supreme Court Act 1981. The Attorney-General seeks an all proceedings order against the Respondent under that section. Were such an order to be granted it would of course mean that the Respondent would be prohibited from bringing or continuing any civil or criminal proceedings or making any application in civil proceedings without the leave of the High Court. It goes without saying that the jurisdiction is important but also draconian and has to be exercised with great care. In the result, for reasons I shall explain shortly, we propose to adjourn the application."

9. See particularly in Attorney-General -v- Parlett DC transcript 5 October 1999, per Laws LJ at paragraphs 5-9,

 

"4 I should make it clear that we have not decided that the course of the Respondent’s litigation against his family would justify an order under section 42, having by no means heard full argument. But it is right to say that the voluminous papers, which of course we have studied with some care, disclose a powerful prima facie case if that litigation is looked at in isolation."-----------------------------------------------------------------------------------------

"5. We have today questioned Mr Parlett with some care as to his present intentions in relation to any litigation which might resurrect issues canvassed before His Honour Judge Jack. I emphasise that we have not sought any undertaking from him. That we think would be of doubtful propriety. He has, however, made it clear to us that he accepts that he can go no further in seeking to escape the effects of Judge Jack’s judgment, whether by the issue of civil or criminal process. If that is his true state of mind and he sticks to it, it would not be right to make a section 42 order today, not least given the history of other unconnected and perfectly proper litigation. We therefore canvassed the possibility with Mr Jay and with Mr Parlett himself that these proceedings might be adjourned. If after 12 months it is apparent that Mr Parlett indeed has not gone back to court to raise again these old issues arising out of his dispute with his family, then the Attorney-General would no doubt seek leave to withdraw the section 42 application. If, unhappily, Mr Parlett were to return to the fray and seek again to open up disputes settled by His Honour Judge Jack in an appeal, then no doubt the Attorney-General would seek to pursue the application under section 42."

------------------------------------------------------------------------------------------------------------------------------------------------------------

"9. In those circumstances, it seems to me right to adjourn the Attorney’s application under section 42. I would adjourn it for 12 months. At the end of that period the Attorney would no doubt seek to have the matter relisted and, as I have already said, it may then appear appropriate either to give leave to withdraw the application or unhappily to proceed with it. It goes without saying that nothing in this short judgment is intended to indicate what the result of the section 42 application would ultimately be if it were necessary to argue it out. It is obviously to be hoped in the public interest, and indeed in Mr Parlett’s interest, that such a course will not be necessary. It very much depends upon his own future conduct. I would make the Order that I have indicated."

per Laws Lm Cfinite order made i10. Finally see again Attorney-General -v- Barker DC transcript CO/4380/98 16 February 2000, where court declined to make an order if it had discretion to do so in view of the concessions made by the Respondent as to his previous conduct.

11. See in particular Attorney-General -v- Barker DC transcript 16 February 2000, per Bingham CJ at paras 1-2,

"1. The Attorney General seeks a civil proceedings order under section 42 of the Supreme Court Act 1981 against Mr Paul Barker. It is unnecessary for present purposes to recite the familiar terms of section 42(1)(a) and (b), save to point out that before the court can make an order under the section it must be satisfied that the statutory precondition of an order is fulfilled, namely that the person against whom the order is sought has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings or made vexatious applications whether in the High Court or any inferior court and whether against the same person or against different persons.

2. If that condition is not satisfied, the court has no discretion to make a civil proceedings order. If the condition is satisfied the court has a discretion to make such an order, but it is not obliged to do so. Whether, where the condition is satisfied, the court will exercise its discretion to make an order, will depend on the court’s assessment of where the balance of justice lies, taking account on the one hand of a citizen’s prima facie right to invoke the jurisdiction of the civil courts and on the other the need to provide members of the public with a measure of protection against abusive and ill-founded claims. It is clear from section 42(3) that the making of an order operates not as an absolute bar to the bringing of further proceedings but as a filter."

12. See further in Attorney-General -v- Barker DC transcript 16 February 2000, per Bingham CJ at paras 23-24,

"-----------------------------------------------------------------------------------------------------------------------------------------------------------If however I am wrong in that conclusion I would not in any event exercise my discretion to make an order against Mr Barker. I do not consider that an order is necessary to prevent further abuse by him of the court process. Mr Barker appreciates that repetition of his previous resort to litigation would damage his mental health and disrupt his contact with his children, which is what he cares most about. He also fully appreciates that if he were to repeat his former conduct he would have no defence at all to an application by the Attorney General.

24. Mr Tam points out that the court could make an order for a limited period, as the section expressly permits, or could adjourn the hearing to see if all goes well. Those are possible options. There is, however, no real point in the first course if the court is satisfied, as I for my part am, that Mr Barker will not repeat his previous conduct in the months ahead. I further think that it is better that he should not have the matter hanging over him as a possible source of anxiety. He has told us that he wants to forget about the unhappy events of November 1997 to March 1998, and it is much better that he should do so. He has offered his word to the court that he will not repeat his previous conduct and I for my part would accept him as meaning what he says. I would therefore decline to make any order on this application."

 

 

 

 

FAILURE TO SUPPLY COPIES OF "BENCH MEMOS/SUMMARIES" OF CROWN OFFICE LAWYERS TO RESPONDENT

1. High Court have held that "Bench memos" should not be disclosed, see R -v- Lord Chancellor’s Dept ex parte O’Toole (1998) COD 269, per Collins J.

2. Court of Appeal have also recently held that "Bench memos" should not be disclosed, see Parker -v- Law Society (1998) Times Law Report December 8 judgment December 4, Independent Law Report December 11, (1999) 96 p. 2 LSG 29, (1999) 143 SJ LB 45, (1999) COD 183.

3. Woolf MR held that "Bench Memos" prepared by members of Court of Appeal staff would only be revealed to members of court hearing case and not to appellants or applicants for leave to appeal.

4. This was to enable judicial assistants to express views freely and without hindrance allegedly for assistance of court.

5. Respondent accepts that Parker -v- Law Society probably binding on Divisional Court, but wishes to argue and raise point so that may be taken further in House of Lords and before European Court of Human Rights.

6. Parker -v- Law Society may however be at variance with authorities on disclosure under rules of "natural justice" and decided per incuriam and not therefore binding, see Williams -v- Fawcett (1985) 1 All ER 787 and Rickards -v- Rickards (1989) 3 All ER 193 and Rakhit -v- Carty (1990) 2 All ER 202.

7. Respondent would be denied "natural justice" by Divisional Court not supplying him with copies of "Bench Memos/Summaries" of Crown Office lawyer in respect of his case.

8. Current practice of Crown Office List and Civil Appeals Office lawyers to prepare "Bench Memos/Summaries" on merits and law applicable to cases involving litigants appearing in person.

9. Common law rules of "natural justice" apply to cases before Divisional Court unless removed by statutory provision, see Wiseman -v- Borneman (1971) AC 297.

10. Any tribunal or body dealing with a statutory appeal that deals with documents that the other party has not been served with or seen so that they may make adequate representations, acts outside of rules of "natural justice".

11. See R -v- Tribunal of Appeal under the Housing Act 1919 (1920) 3 KB 334, per Lord Reading and R -v- Secretary of State for Health ex parte Gandhi (1991) 1 WLR 1053, per Taylor LJ, observing that due to non disclosure of documents there had been no hearing of matter at all.

12. See R -v- Secretary of State for Health ex parte Gandhi (1991) 1 WLR 1053, per Taylor LJ at page 1063 paras F-G,

"As to documents, there can be no doubt that the applicant is entitled to disclosure of all the material necessary to enable him to present his appeal and answer any points made against him. He is thus clearly entitled to see any report, recommendations or submissions made by the F.P.C. and the M.P.C. and seen by the Secretary of State. In my view he should see all the documents put before the Secretary of State. In my view he should see all the documents put before the Secretary of State except where public interest immunity can be established or where any overriding confidentiality regarding a third party requires a particular document or part of it not to be disclosed:"---------------

13. See further in R -v- Secretary of State for Health ex parte Gandhi (1991) 1 WLR 1053, per Taylor LJ at page 1067 para H to page 1068 paras A-B,

-------------------------------------------------------------------------------"Whatever the reason, it is conceded that the documents should have been disclosed. The applicant was deprived of the opportunity of responding to the adverse points made about him. In these circumstances, there really was no hearing at all of the applicant’s appeal: see Rex v. Housing Appeal Tribunal [1920] 3 K.B. 334, 340-342, per Earl of Reading C.J. It may well be that the outcome would have been different even if the documents had been disclosed. However, I am prepared to make a declaration that the failure to disclose the documents amounted to procedural impropriety. Despite the delay, I consider it to be in the interests of good administration that the procedural requirements on an appeal of this kind should be declared."

14. This supported by Kanda -v- Government of Malaya (1962) AC 322, Chief Constable of North Wales Police -v- Evans (1982) 1 WLR 1155, R -v- Chief Constable of Thames Valley Police ex parte Stevenson (1986), The Times 22 April, R -v- Chief Constable of Avon and Somerset ex parte Clarke (1986) The Independent 27 November, Shareef -v- Commissioner for Registration of Indian and Pakistani Residents (1966) AC 47, R -v- Deputy Industrial Injuries Commissioner ex parte Jones (1962) 2 QB 677.

15. Principle of applicant being supplied with full particulars of representations by third parties fully explored by leading judgment of House of Lords in R -v- Secretary of State for Home Department ex parte Doody and ors (1993) 3 WLR 154, (1993) 3 All ER 92, per Lord Mustill pages 105 para J to page 112 para D.

16. Full principles of fairness set out in R -v- Secretary of State for Home Department ex parte Doody and ors (1993) 3 WLR 154, (1993) 3 All ER 92, per Lord Mustill at page 106 para E to H, and see in particular principle No. 6 at para H,

-------------------------------------------------------------------------------"(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

17. Held that applicants serving life sentences should be given full particulars of any comments made by trial judge and Lord Chief Justice as to the question of length time spent in custody so that they could make adequate representations as to consideration and subsequent release on licence. Held that denial of "natural justice" for applicants not to be so informed.

18. See in particular R -v- Secretary of State for Home Department ex parte Doody and ors (1993) 3 WLR 154, (1993) 3 All ER 92, per Lord Mustill at pages 109 para F,

--------------------------------------------------------------------------------------------------------------------------------------------------------------"In my view he does possess this right, for without it there is a risk that some supposed fact which he could controvert, some opinion which he could challenge, some policy which he could argue against, might wrongly go unanswered."

19. Additionally, same point affirmed by Court of Appeal in R -v- Parole Board ex parte Wilson (1992) QB 740 and R -v- Secretary of State for the Home Department ex parte Georgiades (1992) TLR 268.

20. This again followed relating to disclosure of police enquiries and reports regarding referrals to Court of Appeal under then section 17 Criminal Appeal Act 1968 in R -v- Secretary of State for the Home Department ex parte Hickey (No 2) (1995) 2 All ER 490.

21. See R -v- Secretary of State for the Home Department ex parte Hickey (No 2) (1995) 2 All ER 490, per Simon Brown LJ, at page 501 para G,

--------------------------------------------------------------------------------------------------------------------------------------------------------------"The guiding principle should always be that sufficient disclosure should be given to enable the petitioner property to present his case. That can only be done if he adequately appreciates the nature and extent of the evidence elicited by the Secretary of State’s enquiries."

22. "Natural justice" required that "Bench Memos/Summaries" prepared by Crown Office lawyer in respect of law and merits of Respondent’s case before Divisional Court, if seen and read by members of court should be disclosed to him by court prior to hearing of HM Attorney-General’s application for "Civil Proceedings Order" in order to give him opportunity of commenting on them.

23. See R -v- Huntington DC ex parte Cowan (1984) 1 WLR 501, R -v- Kent Police Authority ex parte Godden (1971) 2 QB 622, R -v- London County Council ex parte Commercial Gas Co (1895) 11 TLR 337, R -v- National Insurance Commissioner ex parte Viscusi (1974) 1 WLR 646, Freeland -v- Glasgow Licensing Board (1980) SLT 101 and R -v- Westminster Assessment Committee ex parte Grosvenor House (Park Lane ) Ltd (1941) 1 KB 53. See also Administrative Law Sixth Edition HWR Wade pages 538 - 543.

24. See also R -v- Hampshire County Council ex parte K (1990) 2 QB 71, (1990) 2 All ER 129 where Council refused to disclose medical evidence to parents, per Watkins LJ at page 131 para J,

-------------------------------------------------------------------------------"not only to keep its cards face down until the first court hearing but also to be selective as it liked as to which cards were then to be turned up."

25. R -v- Army Board of Defence Council ex parte Anderson (1992) 1 QB 169, (1991) 3 All ER 375, illustrates principle of need for full and adequate disclosure of documents before tribunal considering matter, see per Taylor LJ distinguishing R -v- Secretary of State for Home Department ex parte Mughal (1974) QB 313, (1973) 3 All ER 769, R -v- MMC ex parte Matthew Brown PLC (1987) 1 WLR 1235 and R -v- Secretary of State for Home Department ex parte Santillo (1981) QB 778, (1981) 2 All ER 897.

26. See R -v- Army Board of Defence Council ex parte Anderson (1992) 1 QB 169, (1991) 3 All ER 375, per Taylor LJ, at page 388 paras E-F,

"Mr Pannick submits that there is no obligation to show all to the complainant. He relies on three authorities, R v. Secretary of State, ex p. Mughal [1973] 3 All ER 796, [1974] QB 313, R v. Secretary of State, ex p. Santillo [1981] 2 All ER 897, [1981] QB 778 and R v. Monopolies and Mergers Commission, ex p. Matthew Brown plc [1987] 1 All ER 451, [1987] 1 WLR 1235. However, in each of those cases, the function of the decision-making body was towards the administrative end of the spectrum. Because of the nature of the Army Board’s function pursuant to 1976 Act, I consider that a soldier complainant under that Act should be shown all the material seen by the Board, apart from any documents for which public interest immunity can properly be claimed. The Board is not simply making an administrative decision requiring it to consult interested parties and hear their representations. It has a duty to adjudicate on a specific complaint of breach of a statutory right. Except where public interest immunity is established, I see no reason why on such an adjudication, the Board should consider material withheld from the complainant."

27. No statutory provision for court officials to provide "Bench Memos/Summaries" at all, and practice appears to have grown from around 1990 of Crown Office list and Civil Appeals Office lawyers acting off their own bat on frolic of their own.

28. For full discussion see The English Legal Process 5 Edition by Terence Ingman at page 273-274.

 

 

 

 

"BENCH MEMOS/SUMMARIES" IN BREACH OF SCHEDULE 1 ARTICLE 6(1) HUMAN RIGHTS ACT 1998

1. Contended that current practice of supplying "Bench Memos/summaries" in Crown Office List and Court of Appeal in breach of Schedule 1 article 6(1) Human Rights Act 1998.

2. In recent judgment of European Commission of Human Rights in Rowe and Davis -v- UK Application No. 28901/95, Commission held that breach of Article 6(1) of Convention where material in possession of prosecution regarding prosecution witnesses not revealed to defence, either at trial or during appeal to Court of Appeal.

3. See judgment of European Commission of Human Rights in Rowe and Davis -v- UK Application No. 28901/95, under heading "safeguard the fairness of proceedings" at paras 68-83,

"68. The Commission recalls that the guarantees in paragraph 3 of Article 6 of the Convention are specific aspects of the right to fair trial set forth in paragraph 1 (see Eur. Court HR, T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 25). The Commission will therefore consider the applicants’ complaint in the light of the two provisions taken together.

69. In assessing whether defence rights have been secured under Article 6 of the Convention, the Commission must consider the proceedings in question as a whole, including the proceedings before the appellate court (see Eur. Court HR, Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, pp. 13-14, para. 18). Moreover, it is not the Commission’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts, and in particular the court of first instance, to assess the evidence before them. The Commission shall only ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see Eur. Court HR, Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, para. 68; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para. 33).

70. Nevertheless, the Commission recalls that the concept of a fair trial includes the fundamental right to adversarial procedure in criminal proceedings. That right means that each party must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other (see Eur. Court HR, Brandstetter v. Austria judgment of 28 August 1991, Series A no. 211, p. 27, paras. 66-67). The Commission has stated in its case-law concerning the rights of an accused under Article 6 para. 3(b) of the Convention that an accused must have at his disposal, for the purposes of exonerating himself or of obtaining a reduction in his sentence, all relevant elements that have been or could be collected by the competent authorities (see No. 8403/78, Comm. Report 14.12.81, D.R. 27, pp. 87-88, paras. 55-58). In the Edwards v. the United Kingdom judgment the Court considered that it is a requirement of fairness under Article 6 para. 1 of the Convention, indeed one which was recognised under English law, that the prosecution authorities disclose to the defence all material evidence for or against the accused and that the failure to do so in that case gave rise to a defect in the trial proceedings (above mentioned Edwards v. the United Kingdom judgment, p. 35, para. 36).

71. The Commission recalls that an issue concerning access to a criminal file was considered, under Article 5 para. 4 of the Convention, by the Court in Lamy v. Belgium (judgment of 30 March 1989, Series A no. 151) in which the Court stated that the appraisal of the need for a remand in custody and the subsequent assessment of guilt are too closely linked for access to documents to be refused in the former case when the law requires it in the latter case. The Court has held that the procedure to review the lawfulness of a detention must ensure equality of arms and be truly adversarial. When the prosecution is familiar with a whole file, a procedure does not afford the detained person with an opportunity of challenging appropriately the reasons relied upon to justify a remand in custody, if counsel is refused access to the file (loc. cit., p. 17, para. 29). In the light of the above, the Commission considers that the requirements of a fair trial within the meaning of Article 6 para. 1 of the Convention are more extensive than those of Article 5 para. 4 of the Convention.

72. The Commission observes that in the present case, there was considerable evidence against the applicants as to their involvement in the offences as charged, and the applicants do not contest that they could put forward all their arguments concerning this evidence during the trial. However, there was relevant material which was, at the time of the trial, withheld from the defence by the prosecution on the grounds of its sensitivity, without reference to the trial judge. This material was then reviewed by the Court of Appeal, upon the ex parte application filed by the prosecution, which confirmed its non-disclosure on the grounds of public interest immunity. The applicants and their lawyers were informed of the ex parte application, but they were unaware even of the category of the material which had been withheld. Nevertheless, one of the areas of information which the applicants have contended may have been withheld was the existence of informants and their claim for financial reward, an element which, if known to the jury, could have affected their assessment of the credibility of prosecution witnesses."

--------------------------------------------------------------------------------------------------------------------------------------------------------------

"75. Whatever the category or categories of the material and the reason or reasons for non-disclosure, they were protected by public interest immunity the maintenance of which is not, in certain circumstances, incompatible with the Convention. Insofar as national security could be involved, the Commission recalls that the Court has already recognised that the use of confidential material may be unavoidable where national security is at stake, but national authorities are not free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved (see Eur. Court HR, Chahal v. the United Kingdom case (judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1866, para. 131). In its recent judgment of Tinnelly and Others v. the United Kingdom, concerning restrictions based on national security grounds on the applicants’ rights to have a determination by a court of their civil claims that they were victims of unlawful discrimination, the Court accepted that the protection of national security is a legitimate aim which may entail limitations on the right of access to a court, including for the purposes of ensuring the confidentiality of security-vetting data. The Court concluded that the right guaranteed to an applicant under Article 6 para. 1 of the Convention to submit a dispute to a court or tribunal in order to have a determination of questions of both fact and law cannot be displaced by the ipse dixit of the executive (judgment of 10 July 1998, to be published in Reports 1998, para. 77)."

--------------------------------------------------------------------------------------------------------------------------------------------------------------

"77. In the present case, the relevant material in question was never put before the jury whose task was to decide, on all the evidence exhibited before them, whether the applicants were guilty. The Commission must therefore examine the question whether the judicial authorities dealing with the applicants’ case preserved the defence rights to a degree that satisfied the requirements of Article 6 para. 1 of the Convention.

78. The starting point for the Commission’s consideration is the principle established by and evolving in the national case-law that in every case in which the prosecution objects to the disclosure of relevant material on the grounds of public interest immunity, the trial court must balance the public interest in non-disclosure against the importance of the materials in question to the defence (see relevant domestic law and subsequent development in the domestic law)."

--------------------------------------------------------------------------------------------------------------------------------------------------------------

"82. In these circumstances, the Commission is of the opinion that, on balance, the proceedings against the applicants taken as a whole cannot be considered to be fair. With regard to the facts that the procedural motion could be heard in camera and that the Court of Appeal’s ruling was not delivered in public, the Commission considers that these were a necessary consequence of the preceding considerations and, having regard to the exemptions provided for under Article 6 para. 1 of the Convention, cannot be said to infringe on the publicity of the trial as a whole. Nonetheless, the latter, in particular, was an aggravating factor in the context of fairness.

CONCLUSION

83. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention."

 

 

 

DISCRIMINATION CAUSED BY "BENCH MEMOS/SUMMARIES"

1. Respondent was discriminated against vis à vis appellants in Court of Appeal (Criminal Division), as current practice in that court for barrister to prepare summary for use of court, but copies supplied to parties before hearing of case.

2. See Practice Direction (Criminal Appeal Summaries) 1992 1 All ER, per Taylor CJ at page paras C-H,

"1. For a number of years the Criminal Appeal Office has prepared summaries of cases coming before the Court of Appeal (Criminal Division) in order to assist the court in its work. These summaries are entirely objective and do not contain any form of advice as to how the court should deal with a case, or any views on the merits of a case. The facts of the case, as outlined in the summary, are drawn entirely from material already available to counsel in the case.

2. The summaries as they are prepared at present are not suitable for disclosure in their entirety to all counsel in a case. This is because they include material which is specific to individual appellants and confidential as between that appellant and the court, which co-appellants;, or counsel for the Crown, are not entitled to know. However, all summaries written after 1 October 1992 will be in a form which can be disclosed to all parties and, subject to any direction to the contrary in a particular case, will be provided by the Criminal Appeal Office to all counsel in the case."

-----------------------------------------------------------------------------------------------------------------------------------------------------------

"6. The summary is provided only so that counsel knows what material the court has before it. The contents of the summary are a matter for the professional judgment of the summary writer but counsel wishing to suggest significant alterations should write to the Registrar of Criminal Appeals. If the Registrar does not agree with the .suggested changes the letter will be put before the court with the summary."-------------------------------------------------------

3. Therefore, Respondent at disadvantage in Divisional Court as opposed to appellants in criminal cases before Court of Appeal (Criminal Division).

4. This may also infringe article 14 Convention for Protection of Human Rights and Fundamental Freedoms and also article 26(1) Covenant on Civil and Political Rights 1966.

 

 

 

EFFECT ON "BENCH MEMOS/SUMMARIES" OF DATA PROTECTION ACT 1998

1. Since judgment in Parker -v- Law Society has been delivered on 4 December 1998, Data Protection Act 1998 has been brought into force on 1 March 2000.

2. Although that Act had been enacted at time of Parker –v- Law Society, its status was similar to Human Rights Act 1998 which not due to come into force until 2 October 2000, see DPP –v- Kebilene and ors (1999) 3 WLR 972 as to Parliament’s intentions in that respect.

3. Irrespective of whether or not Parker -v- Law Society rightly decided in December 1998, conceded that effects of Data Protection Act 1998 irrelevant to its effect at that time.

4. However, effect of Act highly relevant to use of "Bench Memos/Summaries" from now on, and present Act currently applies to all manual records in "structured" file processed after 23 October 1998, see Schedule 8 para 2(1) Data Protection Act 1998.

5. Contended that current "Bench Memos/Summaries" come within scope of Data protection Act 1998 as they satisfy definitions of "data", "processing" and "relevant filing system" in section 1(1) of Act.

6. "Judicial Assistants" also satisfies definition of "data processor" and Crown Office also satisfy definition of "data controller" in section 1(1) of Act.

7. No exemptions anywhere in current Act for documents prepared for court use to be confidential, and exempt from access, see Part IV and Schedule 7 of Data Protection Act 1998, as section 35 relates to disclosure which is required in connection with legal proceedings under other statutory provisions or obligations.

8. "Bench Memos/Summaries", also not subject to "legal professional privilege" under Schedule 7 para 10 Data Protection Act 1998, as they are not prepared by lawyers acting for the court who are not parties to the proceedings in any event and deemed impartial.

9. Applicant may write to court to ask for copies of all Bench Memos/Summaries under section 7(1) and 8(2) Data Protection Act 1998, and court have 40 days within which to respond, see section 7(10) of Act.

10. Applicant will have right to have inaccurate statements "erased" or blocked", see section 12A and 14 of Data Protection Act 1998, and also to serve Notice requesting harmful "processing" to cease if likely to cause damage, see section 10(1) of Act.

11. If copies are not supplied, Applicant can report matter to Data Protection Commissioner, see section 42 Data Protection Act 1998, and Commissioner has power to serve Information Notice, see section 43 and Enforcement Notices, see section 40 of Act.

12. Applicant therefore requests that the court either give him copies of "Bench Memos/Summaries" of Crown Office in present case, or application is adjourned until end of 40 period to permit Crown Office to respond to Applicant’s request, and if necessary for matter to be referred by them to Data Protection Commissioner.

 

 

 

"BENCH MEMOS/SUMMARIES" POSSIBLE CONTEMPT OF COURT

1. Contended that current practice of Crown Office and Civil Appeals Office lawyers preparing "Bench Memos/Summaries" for court involving litigants in person may be tantamount to serious Contempt of Court, as contempt perpetrated by attempts to influence judges currently hearing cases with view to influencing outcome.

2. See Supreme Court Practice 1998, Vol 1 notes to Order 52 rule 1 "words written or spoken, scandalising the Court". Considered contempt of court to write letters to judge in attempt to influence decision, see Lechmere Charlton’s Case (1837) 2 My & Cr 316, Martin’s Case (1747) 2 Russ & M 674, and Re Dyce Sombre (1844) 1 Mac & G 116 at page 122.

 

 

 

 

LACK OF IMPARTIAL HEARING BEFORE DIVISIONAL COURT BEING BROUGHT BY HM SOLICITOR-GENERAL ON BEHALF OF HM ATTORNEY-GENERAL

1. Contended that hearing before Divisional Court not "independent and impartial tribunal" tribunal for purposes of Schedule 1 article 6(1) Human Rights Act 1998.

2. This because application brought in name of HM Attorney-General by HM Solicitor-General, and both consulted in writing regarding appointment of High Court judges, see "Guide for Consultees" exhibited to Witness Statement of Peter Sainsbury.

3. They or their predecessors may have been consulted regarding appointment of Keene J and also Simon Brown LJ when originally appointed to High Court bench on recommendation of previous Lord Chancellor.

4. Simon Brown LJ appointed on recommendation of HM Queen by being recommended by then Prime Minister on advice from previous Lord Chancellor.

5. Both Law Officers members of HM Government even thought not cabinet members, and although theoretically independent legal advisers to HM Government, as members along with Lord Chancellor, owe allegiances to Prime Minister.

6. This issue pertinent to put before court due to impending coming into force of Human Rights Act 1998.

7. Court currently entitled to take compliance with Convention for the Protection of Human Rights and Fundamental Freedoms into account in exercising its discretion to set aside "Civil Proceedings Order" in current appeal, especially if later similar challenge could be made after 2 October 2000.

8. Court entitled to take compliance with Convention for the Protection of Human Rights and Fundamental Freedoms into account in exercising its discretion to set aside "Civil Proceedings Order" in current appeal, especially if later similar challenge could be made after 2 October 2000, see R -v- DPP ex parte Kebeline (1999) 4 All ER 801.

9. In addition in Divisional Court "Bench Memos/Summaries" prepared by Judicial Assistants in employment of Court Service under aegis of Lord Chancellor, who consulted about High Court judicial appointments and gives advice regarding appointment of Lord Justices of Appeal.

10. Again colleague of both respective Law Officers who currently appears before Divisional Court as Claimant.

11. For full statement of principles applicable, see Witness Statement of Peter Sainsbury, along with exhibited evidence regarding procedures for appointment of both High Court Judges and Lord Justices of Appeal.

12. Contended therefore that due to involvement of Law Officers in appointment of High Court judges and their role as legal advisers to HM Government, that all applications for Civil Proceedings Orders under section 42(1) of the Supreme Court Act 1981 are not heard before impartial tribunal and thereby infringe Schedule 1 article 6(1) Human Rights Act 1998.

13. Therefore not impartial tribunals on mere "objective test" principle, see Fey -v- Austria 93/1991/345/418 judgment of European Court 24 February 1993, in particular at para 30,

"30. Under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and, above all, as far as criminal proceedings are concerned, in the accused. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is determinant is whether this fear can be held to be objectively justified (ibid., § 51)

In this regard, the Court has previously held that the mere fact that a judge has also made pre-trial decisions in the case cannot be taken as in itself justifying fears as to his impartiality see the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 22, § 50) . Although this statement referred to systems like the Danish, where investigation and prosecution are exclusively the domain of the police and the prosecution, it must also be of some relevance to systems of an inquisitorial character, such as the Austrian. What matters is the extent and nature of the pre-trial measures taken by the judge (see mutatis mutandis, the De Cubber v. Belgium judgment of 26 October 1984 series A no. 86, pp. 15-16, §§ 29-3O, and the above-mentioned Thorgeirson judgment, Series A no. 239, p. 24, § 53)."

14. Test again applied to hearings before Court Martials in UK by European Court, see Findlay -v- UK 110/1995/616/706 judgment 25 February 1997, in particular at paras 70-80,

"70. The applicant complained that the court-martial was not an "independent and impartial tribunal" as required by Article 6 § 1, because inter alia all the officers appointed to it were directly subordinate to the convening officer who also performed the role of prosecuting authority (see paragraphs 14-17 and 36-41 above). The lack of legal qualification or experience in the officers making the decisions either at the court-martial or review stages made it impossible for them to act in an independent or impartial manner."

-------------------------------------------------------------------------------

-------------------------------------------------------------------------------

"72. The Commission found that although the convening officer played a central role in the prosecution of the case, all of the members of the court-martial board were subordinate in rank to him and under his overall command. He also acted as confirming officer, and the court-martial’s findings had no effect until confirmed by him. These circumstances gave serious cause to doubt the independence of the tribunal from the prosecuting authority. The judge advocate’s involvement was not sufficient to dispel this doubt, since he was not a member of the court-martial, did not take part in its deliberations and gave his advice on sentencing in private.

In addition, it noted that Mr Findlay’s court-martial board contained no judicial members, no legally-qualified members and no civilians, that it was set up on an ad hoc basis and that the convening officer had the power to dissolve it either before or during the trial. The requirement to take an oath was not a sufficient guarantee of independence.

Accordingly, it considered that the applicant’s fears about the independence of the court-martial could be regarded as objectively justified, particularly in view of the nature and extent of the convening officer’s roles, the composition of the court-martial and its ad hoc nature. This defect was not, moreover, remedied by any subsequent review by a judicial body affording all the guarantees required by Article 6 § 1, since the confirming officer was the same person as the convening officer, and the reviewing authorities were army officers, the second of whom was superior in rank to the first. The ineffectiveness of the post-hearing reviews was further underlined by the secrecy surrounding them and the lack of opportunity for Mr Findlay to participate in a meaningful way.

73. The Court recalls that in order to establish whether a tribunal can be considered as "independent", regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 15, § 37.

As to the question of "impartiality", there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see the Pullar v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions-1996, p § 30).

The concepts of independence and objective impartiality are closely linked and the Court will consider them together as they relate to the present case.

74. The Court observes that the convening officer, as was his responsibility under the rules applicable at the time, played a significant role before the hearing of Mr Findlay’s case. He decided which charges should be brought and which type of court-martial was most appropriate. He convened the court-martial and appointed its members and the prosecuting and defending officers (see paragraphs 14-15 and 36-37 above).

Under the rules then in force, he had the task of sending an abstract of the evidence to the prosecuting officer and the judge advocate and could indicate passages which might be inadmissible. He procured the attendance at trial of the witnesses for the prosecution and those "reasonably requested" by the defence. His agreement was necessary before the prosecuting officer could accept a plea to a lesser charge from an accused and was usually sought before charges were withdrawn (see paragraphs 38 and 39 above).

For these reasons the Court, like the Commission, considers that the convening officer was central to Mr Findlay’s prosecution and closely linked to the prosecuting authorities.

75. The question therefore arises whether the members of the court-martial were sufficiently independent of the convening officer and whether the organisation of the trial offered adequate guarantees of impartiality.

In this respect also the Court shares the concerns of the Commission. It is noteworthy that all the members of the court-martial, appointed by the convening officer, were subordinate in rank to him. Many of them, including the President, were directly or ultimately under his command (see paragraph 16 above). Furthermore, the convening officer had the power, albeit in prescribed circumstances, to dissolve the court-martial either before or during the trial (see paragraph 40 above).

76. In order to maintain confidence in the independence and impartiality of the court, appearances may be of importance. Since all the members of the court-martial which decided Mr Findlay’s case were subordinate in rank to the convening officer and fell within his chain of command, Mr Findlay’s doubts about the tribunal’s independence and impartiality could be objectively justified (see, mutatis mutandis, the Sramek v. Austria judgment of 22 October 1984, Series A no. 84, p. 20, § 42).

77. In addition, the Court finds it significant that the convening officer also acted as "confirming office". Thus, the decision of the court-martial was not effective until ratified by him, and he had the power to vary the sentence imposed as he saw fit (see paragraph 48 above). This is contrary to the well-established principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of "tribunal" and can also be seen as a component of the "independence" required by Article 6 § 1 (see, mutatis mutandis, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, § 45).

78. The Court further agrees with the Commission that these fundamental flaws in the court-martial system were not remedied by the presence of safeguards, such as the involvement of the judge advocate, who was not himself a member of the tribunal and whose advice to it was not made public (see paragraphs 45-46 above), or the oath taken by the members of the court-martial board (see paragraph 35 above).

79. Nor could the defects referred to above (in paragraphs 75 and 77) be corrected by any subsequent review proceedings. Since the applicant’s hearing was concerned with serious charges classified as "criminal" under both domestic and Convention law, he was entitled to a first instance tribunal which fully met the requirements of Article 6 § 1 (see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, pp. 16-18, §§ 31-32).

80. For all these reasons, and in particular the central role played by the convening officer in the organisation of the court-martial, the Court considers that Mr Findlay’s misgivings about the independence and impartiality of the tribunal which dealt with his case were objectively justified."

-------------------------------------------------------------------------------

"In conclusion, there has been a violation of Article 6 § 1 of the Convention."

15. Test again applied to hearings before Royal Court in Guernsey by European Commission, see McGonnell -v- UK Application No. 28488/95, Report of Commission adopted 20 October 1988, see in particular paras 51-63,

"51. The applicant does not agree that the Royal Court constituted an "independent and impartial tribunal" for the purposes of Article 6 para. 1 of the Convention."

52. The Commission recalls that the civil "limb" of Article 6 para. 1 of the Convention applies to disputes over a "right" which can be said, at least on arguable grounds, to be recognised in domestic law. The dispute must be genuine and serious, and may relate not only to the existence of a right, but also to its scope and the manner of its exercise. The result of the proceedings must be decisive for the right in question (see Eur. Court BR, Zander v. Sweden judgment of 25 November 1993, Series A no. 229-P, p. 38, para. 22)".

--------------------------------------------------------------------------------------------------------------------------------------------------------------

"54. The Commission must determine whether the Royal Court constituted an "independent and impartial tribunal" within the meaning of Article 6 para. 1 of the Convention.

55. As a preliminary point, the Commission would recall that in the case of Jon Kristinsson v. Iceland, it did not accept the Icelandic Government’s contentions that the combination of investigative and judicial power in one person was compatible with Article 6 of the Convention due to the special historical and geographical conditions obtaining in Iceland (Jon Kristinsson v. Iceland, No. 12170/96, Comm. Rep. 8.3.99, paras. 43 and 49-59, in Eur. Court BR, Series A no. 171-B; the case settled before the Court). In the present case, the Commission finds no reasons related to the historical or geographical conditions in Guernsey which could affect its reasoning in this regard.

56. In determining whether a body can be considered to be independent, regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence. As to the question of impartiality, a distinction must be drawn between a subjective test, which concerns the conviction of a judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Eur. Court BR, Langborger v. Sweden judgment of 22 June 1999, Series A no. 155, p. 16, para. 32 with further references).

57. As to the question of the subjective impartiality of the Royal Court, the Commission notes the Government’s submission that there is no suggestion of actual personal bias by any member of the Royal Court in the determination of the applicant's case and the applicant has not argued any personal bias on the part of the members of the Royal Court. The Commission therefore sees no reason in the present case to doubt the personal impartiality of the Bailiff or the Jurats.

58. As to the independence of the Royal Court, the Commission notes that the Bailiff is appointed by the Sovereign and holds office during Her Majesty’s pleasure subject to a retirement age of 70 years. The Bailiff’s irremovability does not have "formal" recognition in law but is dependent on direction by Her Majesty. Further, the Bailiff has no role in the IDC, and is not involved in the appointment of the civil servants who make up the IDC. The Jurats are appointed by the States of Election (the electoral college responsible for electing Jurats) and hold office on a permanent basis with a retirement age of 70 years which can be extended to 75 years subject to the agreement of their colleagues. A Jurat may only be dismissed by Her Majesty and not by the executive. There are thus a number of guarantees of structural independence and impartiality.

59. However, these objective guarantees of independence and impartiality do not satisfy the requirements of Article 6 para. 1 taken alone. In addition, the case-law requires the body to present "an appearance of independence", and there must be sufficient guarantees "to exclude any legitimate doubt" as to the impartiality of the judge (see the aforementioned Langborger judgment, p. 16, para. 32). The Commission will consider these issues together (see Eur. Court BR, Incal v. Turkey judgment of 9 June 1998, Reports 1998 par. 65).

60. The Commission notes the plethora of important positions held by the Bailiff in Guernsey. The Bailiff presides over the States of Election, (where he has a casting vote), the States of Deliberation (the Island legislature, where he also has a casting vote), the Royal Court and the Court of Appeal. He is the head of the administration of the Island and presides over four States Committees including the Appointments Board, the Legislation Committee (which deals with the drafting of legislation) and the Rules of Procedure Committee. The Commission also notes that the Jurats, who decide the cases before the Royal Court, are appointed by the States of Election and that the Bailiff is the President of the States of Election and has a casting vote in the event of an equality of votes. The Commission further notes that no appeal lay against the decision of the IDC beyond that of the Royal Court and that therefore the Royal Court was the final - and, indeed, the sole - court for the applicant’s case.

61. The position in the present case was therefore that when the applicant appeared before the Royal Court on 6 June 1995, the principal judicial officer who sat on his case, the Bailiff, was not only a senior member of the judiciary of the Island, but was also a senior member of the legislature - as President of the States of Deliberation - and, in addition, a senior member of the executive - as titular head of the administration presiding over a number of important committees. It is true, as the Government point out, that the Bailiff’s other functions did not directly impinge on his judicial duties in the case and that the Bailiff spends most of his time in judicial functions, but the Commission considers that it is incompatible with the requisite appearances of independence and impartiality for a judge to have legislative and executive functions as substantial as those in the present case. The Commission finds, taking into account the Bailiff’s roles in the administration of Guernsey, that the fact that he has executive and legislative functions means that his independence and impartiality are capable of appearing open to doubt.

62. The Commission finds that, in the light of its finding regarding the Bailiff, it is not necessary to examine separately the role of the Jurats.

63. The Commission accordingly finds that, in the present case, the Royal Court did not satisfy the requirements of independence and impartiality and that there has been a breach of Article 6 para. 1 of the Convention."

16. Regarding concurring opinion of Mr Bratza in McGonnell -v- UK, has been suggested that Lord Chancellor may be vulnerable to challenge if sitting in judicial capacity in House of Lords, see concurring opinion,

"While I see force in the argument advanced in the Dissenting Opinion of Mr Alkema that the Convention should not be interpreted in such a way as to impose on a small island community such as Guernsey elaborate constitutional structures similar to those which exist in large States, I am unable to accept that this can justify a departure from the requirement in Article 6 that a tribunal should be independent and impartial and, in particular, that it should present an appearance of independence (see eg. the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 15, para. 37).

In my view these requirements were not met for the reasons given in the opinion of the majority of the Commission. I wish, however, to make clear that my view is confined to cases such as the present, where the proceedings in which the Bailiff sits in a judicial capacity relate to the acts or decisions of the Executive - in this case, the refusal of the IDC to grant permission for a change of use. Different considerations would in my view apply where the Bailiff sat in cases involving a dispute between private parties, in which there was no lack of the requisite appearance of independence."

17. European Commission of Human Rights in Govell -v- UK Application No 27237/95 14 January 1998 held that lack of impartiality of Police Complaints Authority in breach of Article 13 of the European Convention of Human Rights, as members appointed by the Secretary of State who also issues guidances to them.

18. In applications for Civil Proceedings Orders as HM Attorney-General appears before court albeit by counsel, court hears from Law Officer guidelines on making of these orders by way of legal submissions.

19. See Govell -v- UK Application No 27237/95 at paras 69 to 70,

"69. The Commission also notes the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the PCA. In particular, the Commission notes that under section 105(4) of the Act the PCA are to have regard to any guidance given to them by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings.

70. The Commission finds that the system of investigation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13. The Commission accordingly finds that there has been a violation of Article 13 of the Convention."

20. Findlay -v- UK (1997) 24 EHRR 221, along with Bryan -v- UK (1995) 21 EHRR 342 and De Cubber -v- Belgium (1984) 7 EHRR 326, considered and approved by Scottish High Court of Justiciary in Starrs -v- Procurator Fiscal Linlithgow (1999) times Law Report 17 November.

21. In Starrs -v- Procurator Fiscal Linlithgow (1999) Times Law Report 17 November, court held that hearings in Scotland before Sheriffs’ Courts where temporary Sheriffs appointed under section 11 Sheriffs’ Courts (Scotland) Act 1971 breached article 6(1) Convention for the Protection of Human Rights and Fundamental Freedoms, as such hearings were deemed not to be impartial.

22. This because temporary Sheriffs appointments were subject to annual renewal by Secretary of State, although Lord Advocate played a role in that.

23. Lord Advocate decided whether temporary Sheriffs were required, drew up provisional lists of candidates from those who applied for post, consulted on them with both Solicitor-General and then Lord President and advised Scottish Courts Administration who should be appointed.

24. Temporary Sheriffs only appointed for 12 months with no security of tenure, but seen as stepping stone to permanent appointment as Sheriff, and any renewal at discretion of executive.

25. Lord Advocate also responsible for criminal prosecutions before both temporary Sheriffs and all Sheriffs’ courts.

26. Analogy with both Law Officers being consulted regarding appointment of High Court Judges, and also being members of government when sovereign on recommendations of Prime Minister on advice from Lord Chancellor appoints Lord Justices of Appeal.

27. High Court judge seen as stepping stone in any event to promotion to Lord Justice of Appeal, and although they appointed on recommendation of Prime Minister in conjunction of Lord Chancellor, Law Officers were nevertheless involved in consultation regarding their initial appointments as High Court judges.

28. This creates lack of impartial tribunal in applications for Civil Proceedings Orders as applications brought by HM Solicitor-General as though by HM Attorney-General by Solicitor-General under section 1(1)(2) Law Officers Act 1997.

 

 

 

 

LENGTH AND PROPORTIONALITY OF MAKING OF ANY "CIVIL PROCEEDINGS ORDER" AGAINST RESPONDENT

 

POWERS OF DIVISIONAL COURT REGARDING LENGTH OF "CIVIL PROCEEDINGS ORDER"

1. Section 42(2) Supreme Court Act 1981 provides,

"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."

2. Provision for Civil Proceedings Orders for "specified period" only came into force with enactment of section 42(2) Supreme Court Act 1981, as this provision not previously included in section 1 Vexatious Actions Act 1896 or section 51 Supreme Court of Judicature (Consolidation) Act 1925, so that Orders made under those provisions were automatically indeterminate in length.

3. Respondent also understand that hardly any limited Orders for specified periods have ever been made under section 42(2) Supreme Court Act 1981 in respect all Orders subsequently made since 1981.

4. Only 2 limited Orders so far made of 15 years made in Attorney-General -v- Price and DC transcript CO/3390/96 19 March 1997, and 10 years made in Attorney-General -v- Yeo DC transcript CO/3736/99 8 December 1999.

5. Contended that provisions of section 42(2) Supreme Court Act 1981 make it mandatory for Divisional Court in all cases to specifically consider whether proposed "Civil Proceedings Order" should remain in force for "a specified period" or "indefinitely" under section 42(2) Supreme Court Act 1981.

6. This construction of statute apparently conceded by Divisional Court in Attorney-General -v- Frank and Harry Foley (1997) CO/565/96 18 February 1997, Crown Office List transcript, per Rose LJ at page 4 para G.

"If the court is so satisfied then it has to consider whether, in the exercise of its discretion, a Civil Proceedings Order, in this case, should be made and, if that becomes material, whether indefinitely or otherwise."

7. Contended therefore that if Divisional Court fails to deal with or consider issue of length of Civil Proceedings Order" therefore has no jurisdiction to make Order at all, and provisions of section 42(2) Supreme Court Act 1981 would be rendered otiose.

8. Divisional Court must therefore in all cases afford full opportunity to Respondent to applications for Civil Proceedings Orders to make submissions on length of proposed Order, as they are clearly entitled to be heard regarding this important issue in accordance with principles of "Natural Justice".

9. Well established principle of "Natural Justice" that tribunal or relevant court must give litigants adequate opportunity of dealing with specific issue which must specifically be put to them in order to facilitate this.

10. See Ridge -v- Baldwin (1964) AC 42, per Lord Hodgson at pages 132-133,

"The matter which to my mind, is relevant in this case is that where the power to be exercised involves a charge made against the person who is dismissed, by that I mean a charge of misconduct, the principles of natural justice have to be observed before the power is exercised."--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"No one, I think, disputes that three features of natural justice stand out––(1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges. The first does not arise in the case before your Lordships, but the two last most certainly do, and the proceedings before the watch committee, therefore, in my opinion, cannot be allowed to stand."-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"I cannot see that the general words of the statute are, in the light of the authorities as I understand them, wide enough to cover a case of this character where allegations of misconduct are involved resulting in the loss of an office and an element of punishment for offences committed. There is imposed a clog on the discretion in that it cannot be exercised arbitrarily without regard to natural justice."--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"I must retreat to the last refuge of one confronted with as difficult a problem as this, namely, that each case depends on its own facts, and that here the deprivation of a pension without a hearing is on the face of it a denial of justice which cannot be justified upon the language of the section under consideration."

11. See also Chief Constable of North Wales Police -v- Evans (1982) 3 All ER 141, per Lord Hailsham at page 144 paras C-D,

-------------------------------------------------------------------------------"The Chief Constable should have directed his mind to the criteria laid down in the regulation in accordance with the appropriate principles of natural justice. He did not do so, and I think it only too likely that this was precisely the belief that his discretion was absolute which led to the cavalier treatment to which, in any event, the respondent was subjected.

To this treatment I now come. Once it is established as was conceded here, that the office held by the chief constable was of the third class enumerated by Lord Reid in Ridge v Baldwin [1963] 2 All ER 66 at 72. [1964] AC 40 at 66, it becomes clear, quoting Lord Reid, that there is ‘an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation’."

12. Contended that this principle extremely important in relation to all applications for Civil Proceedings Orders, as Order remains in force "indefinitely" and cannot be set aside by subsequent court unless nullity ab initio.

13. See Rohrberg -v- Charkin Times Law Report CA transcript 85/15 30 January 1985,, regarding to both Orders under section 51 Supreme Court of Judicature (Consolidation) Act 1925 and section 42(1) of the Supreme Court Act 1981, per Donaldson MR at page 1 para H to page 2 para A and para C-F,

"So far as section 51 is concerned, there is no power in that section or elsewhere in the Act for the court to consider whether an order made under that section should be discharged."-------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"So far as section 42 of the 1981 Act is concerned (which, as I say, is not directly relevant to Miss Rohrberg’s case, since her order was made under the 1925 Act) it is in all material respects save one the same as the corresponding section under the 1925 Act. That exception is in subsection (2), which provides that an order under section (1) may provide that it is to cease to have effect at the end of the specified period, but otherwise remains in force indefinitely. If there is any assistance to be obtained from the 1981 Act it is to suggest that the scheme of this particular statutory provision is that unless the order itself contains some limitation it is indefinite in duration.

Accordingly, I would hold, as did the Divisional Court, that neither the High Court, nor the Divisional Court as part of it, has any jurisdiction to entertain an application to discharge an order, made either under section 51 of the 1925 Act or under section 42 of the 1981 Act, although there is undoubtedly a power in the Court of Appeal to entertain an appeal limited to the issue of whether the order should have been made originally."

14. This principle recently reiterated in Matthew -v- HM Attorney-General (1999) COD 393, where held that Divisional Court did not have any jurisdiction to set aside indeterminate "Civil Proceedings Order" once validly made.

 

 

 

REASONABLENESS OF DIVISIONAL COURT MAKING AN INDETERMINATE "CIVIL PROCEEDINGS ORDER" AGAINST RESPONDENT

1. Disqualification Orders in respect of company directors made for specified periods as provided by section 1(1) Company Directors Disqualification Act 1986, and relevant provisions of that Act under which the Disqualification Order is made.

2. Of particular relevance to indeterminate Civil Proceedings Orders made under section 42(2) Supreme Court Act 1981, is fact that when Disqualification Orders are made on conviction for an Indictable Offence by either Magistrates Court or Crown Court under section 2(1) and 2(2)(b)(c) Company Directors Disqualification Act 1986, maximum time limit orders should be reserved for only most serious of cases.

3. However, there are also provisions for both appeals and subsequent reviews of such Disqualification Orders under rules 7.47(1) and 7.49(1) Insolvency Rules 1986 which are applicable to Orders under section 21(2) Company Directors Disqualification Act 1986, as held in Re Tasbian Ltd (No. 2) (1992) BCC 322 and Re Probe Data Systems Ltd (No 3) (1992) BCC 110.

4. Contended therefore that should be matter of general principle that any "Civil Proceedings Order" should be "indeterminate" under section 42(2) Supreme Court Act 1981 in only most serious of cases, as case with Orders made by Crown Court under section 2(1) and 2(2)(b)(c) Company Directors Disqualification Act 1986, and also civil court Disqualification Orders as well under same Act.

5. See R -v- Millard (1993) 15 Cr App R (S) 445, per McCowan LJ at page 448 approving Re Seven Oaks Stationery (Retail) Ltd (1991) Ch 164, per Dillon LJ at page 174 paras E-G,

"I would for my part endorse the division of the potential 15-year disqualification period into three brackets,"---------------------------"(i) the top bracket of disqualification for periods over 10 years should be reserved for particularly serious cases."--------------------------------------------------------------------------------------------------"(ii) The minimum bracket of two to five years' disqualification should be applies where, though disqualification is mandatory, the case is relatively, not very serious. (iii) The middle bracket of disqualification for from six to 10 years should apply for serious cases which do not merit the top bracket."

6. Would appear however, that Divisional Court so far has taken the view apart from Attorney-General -v- Price (1997) CO/3390/96, and Attorney-General –v- Yeo (1999) CO/3736/99, that indefinite orders are justified, as all constituted most serious and worse cases scenario.

7. See Attorney-General -v- Price DC transcript CO/3390/96 19 March 1997, per Brooke LJ at page 27 para G and page 30 paras D-F to page 31 paras A-F ,

"There are now three final matters to be decided. Should we in the exercise of our discretion make a civil proceedings order? Should any order be limited or unlimited in time?"-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"Next, the length of the order. The power of the Court to make an order limited in time was first introduced in 1981, and we were told by Mr Jay that until now it has never been exercised. He expressed concern that if a limited order was made a vexatious litigant might seek to revive old causes of grievance by assertions that his or cause of action had been concealed by equitable fraud so as to prevent time running under the Limitation Act.

It appears to us that this in itself is no good reason for not making a time-limited order if we considered that the justice of the case demanded it. If litigation we regard as vexatious was revived after a time-limited order expired, the Attorney-General could always come back to this court for appropriate relief, and it may be desirable when the wording of the statute is next under review to make it completely clear that the court could grant such relief notwithstanding that the once vexatious litigant had not had time to satisfy the criteria in Section 42(1) all over again since his or discharge from a time-limited order. In our judgment, given that the power to make a time-limited order exists, we ought to exercise it in this case."---------------------------------------------------------------------------------------------------------------------------------"Mr Price is now 53. Provided that he is prevented from embarking on civil proceedings (or making applications in civil proceedings) for 15 years, we consider that an appropriate balance would be struck between the need to bring the present nuisance very firmly to an end and the desirability of removing the restriction from Mr Price at a time when it is no longer likely to serve any very useful purpose. We therefore make a civil proceedings order against him for 15 years."

8. Contended that approach in Attorney-General -v- Price was itself flawed, as Divisional Court failed to apply any visible tariff criteria coupled with reasons for making "Civil Proceedings Order" for period of 15 years.

9. See also Attorney-General –v- Yeo DC transcript CO/3736/99 8 December 1999, per Smith J and Rose LJ at paras 25-27

"However, it does appear to me that there is some merit in the submissions advanced on Mr Yeo’s behalf by the Citizens Advice Bureau. It is true to say that this case is not as bad as many that one sees and it is true also that Mr Yeo has not shown any propensity to direct actions against a great variety of people in an indiscriminate manner. I am satisfied, as I have said, that the trustees must be protected from my further actions arising out of this will, but I am not persuaded that it is necessary to impose an order which will be of indefinite duration.

We were helpfully referred by Mr Jay to the case of the Attorney-General v Price [1997] COD 250. In that case the court drew attention to the power of the court to make an order for a limited time period. That power came into existence in 1981 under the Supreme Court Act, but had, until 1997, not apparently been exercised. I have considered what period of time would be appropriate to give the trustees, and any other potential defendant who might be affected by an action arising out of Mr Ellis’s will, the necessary protection. I consider that any relevant limitation period will have expired and a suitable interval thereafter will also have passed if an order for 10 years from today were to be made. I consider that such an order would be appropriate. It would give the trustees the protection which they plainly need. It would cause Mr Yeo to cease wasting public resources and give him an opportunity to recover from the anger which he has plainly felt in the past few years as a result of the events of 1994. It would have the advantage of allowing him in the later years of his life freedom of access to the courts. I am conscious of how serious a matter it is to deprive a citizen of the right of access to the court and, in my judgment, an order for a period of 10 years would provide an appropriate balance between the interests of the trustees and the public, on the one hand, and Mr Yeo on the other. I would propose a civil proceedings order for a term of 10 years.

LORD JUSTICE ROSE: I agree. Accordingly, we shall make a civil proceedings order under section 42 of the Supreme Court Act 1981 for a period of 10 years from today."

10. However, reality would appear to be that Divisional Court has previously, apart from judgments in Attorney-General -v- Price and Attorney-General –v- Yeo, completely failed to apply any criteria at all to this issue, and it would appear that this has been fully endorsed by Court of Appeal in few cases that have reached this court.

11. However, in three recent cases, court has attempted to apply its mind to issue of whether Order should be indefinite or limited in time, and attempted to justify with some reasons why Orders made indefinitely;

12. Firstly see Attorney-General -v- Bishop DC transcript CO/993/98 5 July 2000, per Laws LJ at para 66,

-----------------------------------------------------------------------------

"I would make the Civil Proceedings Order that is sought here and I would make it without limit of time. There is no rational basis that I can perceive upon which a time limited order ought properly to be made."

13. Finally, see Attorney-General -v- Amin DC transcript CO/0990/00 13 July 2000, per Laws LJ at para 72,

------------------------------------------------------------------------------------------------------------------------------------------------------------"I see no basis upon which it would be right to make an order limited in time and I have no doubt but that this respondent would continue to litigate in effect indefinitely if he were allowed to do so. For all the reasons I have given, I would make a Civil Proceedings Order in this case not limited in time."

14. Contended that it is implicit that full reasons are given as to why either an indefinite order is made, or one limited in time and the reasons for applying any particular tariff and time limit.

15. Any failure to do so may contravene Schedule 1 article 6(1) Human Rights Act 1998 which requires reasons for decisions for a "fair hearing".

16. Supplying reasons for dismissal of appeals in the Crown Court, was established in R -v- Harrow Crown Court ex parte Dave (1994) 1 WLR 99.

17. See R -v- Harrow Crown Court ex parte Dave (1994) 1 WLR 99, per Pill J at page 107,

"The Crown Court judge giving the decision of the court upon an appeal must say enough to demonstrate that the court has identified the main contentious issues in the case and how it has been resolved.......The reasoning required will depend upon the circumstances. in some cases the bald statement that the evidence of a particular witness is accepted may be sufficient...

The appellant was entitled to know the basis upon which the prosecution case had been accepted by the court . In the present case, that involved knowing the process by which the apparently powerful points in favour of the defence had been rejected."

18. This principle again applied in R -v- Snaresbrooke Crown Court ex parte Brooke (1997) COD 81, and recently in Pullam -v- Crown Prosecution Service 17 April 2000.

19. For full review of law relating to lack of reasons, see Flannery and anor -v- Halifax Estate Agencies Ltd (1999) All ER 159.

 

 

 

 

OTHER DISQUALIFICATION ORDERS MADE IN ENGLAND AND WALES AND THEIR EFFECTS RELATING TO CIVIL PROCEEDINGS ORDERS

1. Respondent draw to court’s attention fact that Disqualification Orders in respect of Driving Licences imposed by courts for road traffic offences under sections 34(1), 34A and 35(1)(a)(b) Road Traffic Offenders Act 1988 in the United Kingdom usually made for definite periods of time.

2. Furthermore, such drivers may apply back to court that made original ban to remove disqualification under section 42(1) Road Traffic Offenders Act 1988, in accordance with time limits set out in section 42(3)(a)(b)(c) of that Act, and even further subsequent applications permitted to be made not less than 3 months from date of refusal of previous application under section 42(4) of that Act.

3. These provisions in addition to offender being able to appeal against making of Disqualification Order imposed by Magistrates Court to Crown Court in simplicitor, irrespective of whether an appeal against remaining part of his sentence under section 38(1) Road Traffic Offenders Act 1988.

4. In relation to conviction on Indictment, drivers can appeal against disqualification from Crown Court to Court of Appeal (Criminal Division) as part of their overall sentence under Criminal Appeal Act 1968.

5. Provisions relating to removal of Disqualification Orders under section 42(1) Road Traffic Offenders Act 1988 applies even in rare cases where life Disqualification Orders have been imposed by Crown Court in bad cases involving death by dangerous driving.

6. In addition, same principles apply to Bankruptcy Orders, which can have severe repercussions for persons subject to them including redirection of mail, cutting off of gas and electricity supplies and most importantly, penal sanctions.

7. Such Orders are made for between 2 and 3 years under section 279(2)(a) and (b) Insolvency Act 1986 before automatic discharge, and there are similarly provisions for them to be subsequently annulled and even reviewed and rescinded under sections 282(1)(a) and (b) and 375(1) Insolvency Act 1986, in addition to normal appeal remedies under section 375(2) of that Act.

8. Similar principles also applicable to "Exclusion Orders" made against football hooligans under section 30(1) Public Order Act 1986, and persons who commit offences on licensed premises under section 1(1) Licensed Premises (Exclusion of Certain Persons) Act 1980.

9. In respect of persons convicted of offences during football matches satisfying criteria in section 31(2), (3)(a)(b)(c) and (4) Public Order Act 1986, the order is for the period specified in section 32(1) of that Act which must not be less than 3 months, but can of course be for life.

10. Again, the order can be appealed against as part of overall sentence of offender in the normal way, but there is specific provision for applications to terminate such orders after 1 year under section 33(1) Public Order Act 1986, and further applications may subsequently be entertained not less than 6 months from date of original refusal under section 33(2) of that Act.

11. In cases of persons convicted of violent offences on licensed premises, offender can be excluded from those "or any other premises" for period not less than 3 months but not more than 2 years under section 1(3) Licensed Premises (Exclusion of Certain Persons) Act 1980.

12. Provisions for "Exclusion Orders" relating to football hooligans and persons convicted of violent offences on licensed premises are therefore very similar in effect and application to driving Disqualification Orders.

13. Also, provisions for subsequent review relating to football hooligans under section 33(1) and (2) Public Order Act 1986, are almost identical to those contained in section 42(1) and (3)(a)(b)(c) and (4) Road Traffic Offenders Act 1988.

14. Finally, Respondent draw to court’s attention fact that prisoners’ discretionary life sentences for any offence, as well as those serving life sentences for murder, being mandatory under section 1(1) Murder (Abolition of Death Penalty) Act 1965, may apply for Parole to Parole Board under section 34(3)(a) and (5) and section 35(2) Criminal Justice Act 1991.

15. Prisoners subject to such life sentences are entitled to full hearing for this purpose under section 32 of that Act with all of procedural guarantees implied by article 6(1) European Convention for the Protection of Human Rights and Fundamental Freedoms.

16. This has been implemented by UK Government largely as result of recent decisions of European Court of Human Rights in Weeks -v- UK Series A No 114, Thynne, Wilson and Gunnell -v- UK Series A No 190, and Wynne -v- UK Series A No 294-A, culminating in the recent case of Hussain -v- UK No 55/1994/502/584 regarding detention at Her Majesty's Pleasure.

17. Contended that indeterminate and un-reviewable nature of Civil Proceedings Orders against Respondent, wholly unwarranted in comparison to other determinate and subsequently reviewable Disqualification Orders and life sentences imposed by courts throughout United Kingdom.

 

 

 

EXTENT AND EFFECTS AND PROPORTIONALITY OF ANY "CIVIL PROCEEDINGS ORDER" MADE AGAINST RESPONDENT

 

PRINCIPLES OF PROPORTIONALITY APPLICABLE TO LENGTH OF ANY "CIVIL PROCEEDINGS ORDER" MADE AGAINST RESPONDENT

1. In addition, Respondent contends that the making of any "Civil Proceedings Order" against him therefore offend against principle of "proportionality" as applied by European Court of Human Rights in recent cases.

2. See in particular Tolstoy -v- UK (1995) 20 EHRR 442, referred to in Attorney-General -v- Price (1997) CO/3390/96 19 March 1997 Crown Office List transcript, per Brooke LJ at page 23 paras B-E,

-------------------------------------------------------------------------------‘The guiding principles were recently restated by the European Court of Human Rights in paragraph 59 of its judgment in Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 in the following terms:

"The Court reiterates that the right of access secured by Article 6(1) may be subject to limitation 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 aim sought to be achieved."

3. Test of reasonable proportionality applied in relation to reduction of libel damages under section 8(1) Courts and Legal Services Act 1990 by Court of Appeal in Rantzen -v- Mirror Group Newspapers (1993) 4 All ER 975.

4. Held that principles of article 10(1) Convention for Protection of Human Rights and Fundamental Freedoms applicable to exercise of discretion in domestic law although not part of it, see Rantzen -v- Mirror Group Newspapers (1993) 4 All ER 975, per Neill LJ at pages 992 to 997, and in particular at page 993 paras B-C,

-------------------------------------------------------------------------------"It is also clear that art 10 may be used when the court is contemplating how a discretion is to be exercised. Thus in A-G v Guardian Newspapers Ltd [1987] 3 All ER 316 at 355, [1987] 1 WLR 1248 at 1296 Lord Templeman referred to art 10 when considering whether the interference with the freedom of expression which the grant of an interlocutory injunction would entail was 'necessary in a democratic society' for any of the purposes specified in para (2) of art 10."

5. Principles of Rantzen -v- Mirror Group Newspapers (1993) 4 All ER 975 approved of and applied by Court of Appeal in John -v- MGN Ltd (1996) 2 All ER 35, per Bingham MR at page 58 para J, in light of subsequent judgment of European Court in Tolstoy -v- UK (1995) 20 EHRR 442.

 

 

 

USE OF ALTERNATIVE REMEDIES TO "CIVIL PROCEEDINGS ORDER" BEING MADE AGAINST RESPONDENT BY DIVISIONAL COURT

1. Contended that any Civil Proceedings Orders made against Respondent would be disproportionate in effect by prohibiting without prior leave of High Court institution of any future "civil proceedings" of whatever nature.

2. This even if wholly unrelated to subject matter of "civil proceedings" taken into account by Divisional Court when deciding to make "Civil Proceedings Order" against them.

3. Contended that provisions of section 42(1)(1A)(a)(b)(c) Supreme Court Act 1981 wholly disproportionate in relation to blanket bans without prior leave, even in relation to fundamental neighbourhood disputes or similar types of proceedings.

4. Contended that Divisional Court should consider utilisation of alternative remedies by Injunction under section 37(1) Supreme Court Act 1981 and/or inherent jurisdiction of court as being more proportionate remedy in respect of actions of Respondent.

5. Specific Injunctions could be obtained by HM Attorney-General under section 37(1) Supreme Court Act 1981 or under inherent jurisdiction of court against Respondent prohibiting further actions being brought against specified defendants without prior leave of High Court or Court of Appeal, see Grepe -v- Loam (1887) 37 Ch D 168, and Co-operative Permanent Building Society -v- Gush (1964) Times Law Report January 21.

6. This alternative remedy far more just and equitable in its effect, than draconian effects of full Civil Proceedings Orders, which in present circumstances of Respondent lacks reasonable proportionality in its too extensive effect.

7. This especially so in view of prejudicial and tarnishing effect of the making of "Civil Proceedings Order", see Attorney-General -v- Cutler CA transcript 87/1268 5 November 1987, per Woolf LJ at page 5 para H to page 6 paras A-B,

------------------------------------------------------------------------------"Nonetheless it is right that this court should bear in mind that an order under section 42 of the Supreme Court Act 1981 is a formidable one which should not be taken lightly by any court, because it restricts a particular litigant in a way in which the remainder of the public are not restricted. Therefore to that extend it impinges upon his rights as an individual and reflects upon him as a citizen."

8. See also Attorney General -v- Collins DC transcript CO/2492/96 9 December 1996, per Collins J,

"As is well-known, the purpose of an order under section 42 is to protect persons who are being plagued by vexatious litigants, whether in civil or in criminal proceedings, but the court of course will always be exceedingly careful to be satisfied that the basis for making an order is made out, because it is a strong interference with a citizen’s right to access to the court."

9. See also Attorney-General -v- Parlett DC transcript CO/2606/98 5 October, per Laws LJ at para 1,

------------------------------------------------------------------------------"It goes without saying that the jurisdiction is important but also draconian and has to be exercised with great care."-------------------

10. This reinterated in Attorney-General -v- Bishop DC transcript CO/933/98 5 July 2000, per Laws LJ at para 63,

"I remind myself, though it is of course elementary, not least on the eve of our incorporation of the European Convention on Human Rights, that an order barring a citizen from the door of the Queen’s courts is a very draconian measure."-------------------------------------------------------------------------------------------------------

11. See further in Attorney-General -v- Coupe (1999) CO/3027/99 29 November 1999 Crown Office List transcript, per Smith J at para 24,

"I accept, of course, that the imposition of an order under section 42 is a serious infringement of a citizen’s right of access to the courts;"---------------------------------------------------------------------

12. Must also now be taken into account that comments regarding reflection on citizenship regarding making of Civil Proceedings Orders must be looked at in light that all citizens are now citizens of European Union.

13. See article 8 Part 2 of Treaty on European Union, which provides,

"1. Citizenship of the Union is hereby established.

Every person holding the nationality of a Member State shall be a citizen of the Union.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby."

14. Court itself can settle terms of Injunction and its overall effect in relation to specific litigation involving defendant, and also manner in which appropriate leave may subsequently be obtained, which not present case under rigid régime of section 42(1) Supreme Court Act 1981.

15. Specific issue of alternative and less draconian remedies by way of Injunctions under section 37(1) Supreme Court Act 1981 and/or exercise of inherent jurisdiction of court, considered in Attorney-General -v- Price (1997) CO/3390/96 19 March 1997.

16. See Attorney-General -v- Price DC transcript CO/3390/96 19 March 1997, per Brooke LJ at page 28 para A-G, page 29 paras A-G to page 30 paras A-C,

‘The only matter that might have influenced us not to make a civil proceedings order was the consideration that Mr Price, like the litigant in Re Vernazza [1959] 1 WLR 622 is a man with a single all-pervading grievance and a civil proceedings order would have the effect of obliging him to pay a £50 premium to the State (being the current fee for a High Court application in the Queen’s Bench and Chancery Divisions) whenever he sought to issue civil proceedings of any kind or to make an application in any such proceedings. There is, however, no evidence that he has ever been involved in any civil proceedings before the Novell dispute blew up, nor any evidence that he wishes or intends to get himself involved in any non-Novell proceedings in the future, so that the weight we should give to this factor in the exercise of our discretion is more limited than it otherwise might have been.

We enquired of Mr Jay whether the High Court had in its inherent jurisdiction made orders against vexatious litigants before the creation of the broadbrush statutory remedy in the Vexatious Proceedings Act 1896. After taking instructions overnight he told us that the Law Officers' Department knew of five, or possibly six cases between 1888 and 1896 in which the court had made a blanket order against a vexatious litigant of the type that was given a codified form in the 1896 Act. Since the remedy was now codified and the statutory remedy could not be limited so as to apply to legal proceedings against a particular defendant only (see Re Hutchison [1929] WN 102) he requested us not to have recourse to the inherent jurisdiction of the court to make an individualised order limited to "Novell litigation," and if Parliament, despite the influence of Article 6 of the European Convention on Human Rights, has not given the High Court a more flexible range of remedies against vexatious litigants it does not appear to us to be appropriate for this Court, on the basis of limited argument and with evidence before it of the Parliamentary preference, to embark on such a course, particularly if the Attorney-General does not invite us to consider it. We saw evidence, by chance, in a case we heard the day after the hearing in the present case finished, of the willingness of the Attorney-General to invoke the inherent jurisdiction of the court in a case where the remedies provided by Section 42 of the 1981 Act were perceived to be insufficient. On 22nd January 1997, in A-G v Landau, this court granted a permanent injunction on the application of the Attorney-General to restrain a vexatious litigant from issuing statutory demands as a prelude to bankruptcy proceedings.

We also took into account the possible administrative and other inconvenience involved in making an order limited to a single category of vexatious litigation. We considered, for example, vexatious arguments as to whether any particular litigation or application was caught or not caught by the terms of a limited order. Taking all these factors into consideration we considered it just, in the exercise of our discretion, to make a statutory order in the usual way.’

17. Issue also considered in Attorney-General -v- Parlett DC transcript CO/2606/98 5 October 1999, per Smith J at para 4,

------------------------------------------------------------------------------"4 I should make it clear that we have not decided that the course of the Respondent’s litigation against his family would justify an order under section 42, having by no means heard full argument. But it is right to say that the voluminous papers, which of course we have studied with some care, disclose a powerful prima facie case if that litigation is looked at in isolation. It is clear that the court has no power to make a split or partial order under section 42 prohibiting the Respondent from litigating only against named parties: Hutchinson [1929] WN 102. That case was decided under an earlier statute, but its effect, as Mr Jay accepts, is unaltered by the somewhat different terms of the current section."

18. Contended that in Attorney-General -v- Price, Divisional Court wrongly declined to utilise use of specific Injunction, as indicated that would be wrong for court of that status to seek to do so in light of statutory powers available under section 42(1) Supreme Court Act 1981.

19. However, judgment clearly expressed reservations regarding too all embracing ambit of making of Civil Proceedings Orders under section 42(1) Supreme Court Act 1981.

20. Contended that Divisional Court should consider whether it should refrain from making Civil Proceedings Orders as being too draconian in effect in light of judgment in Attorney-General -v- Price, leaving HM Attorney-General to bring fresh application before Divisional Court for Injunction under section 37(1) Supreme Court Act 1981 and/or inherent jurisdiction of court.

21. Court should also take into account that Respondent could be made subject of Grepe -v- Loam Order by Divisional Court, which is ample protection against further misconceived actions and applications made by them, and this on its own sufficient.

 

 

 

DISPROPORTIONATE AND DISCRIMINATORY PROVISIONS OF SECTION 42 SUPREME COURT ACT 1981 IN RELATION TO REMAINING JURISDICTIONS OF UNITED KINGDOM

 

HISTORY OF ENGLISH LEGISLATION

1. When section 1 Vexatious Actions Act 1896 originally enacted, no prohibition at all against appeals from refusals of leave to institute "legal proceedings" from judge in chambers. Therefore not original intention of Parliament that right of appeal against such refusals of leave at all.

2. Vexatious Actions Act 1896 repealed in 1925 and consolidated into section 51 Supreme Court of Judicature (Consolidation) Act 1925 which in identical terms to original Act and again did not restrain any appeals from judge in chambers to Court of Appeal.

3. Section 51 Supreme Court of Judicature (Consolidation) Act 1925, amended by section 1(2) Supreme Court of Judicature (Amendment) Act 1959 to prohibit continuation of "legal proceedings" commenced prior to making of Vexatious Litigation Order.

4. Most importantly however, section 31 Supreme Court of Judicature (Consolidation) Act 1925 relating to restriction on right of appeals to Court of Appeal, amended by section 1(2) Supreme Court of Judicature (Amendment) Act 1959 by adding sub-para "l" prohibiting any appeal against refusal of leave by judge in chambers under section 51 Supreme Court of Judicature (Consolidation) Act 1925.

5. Whole of Supreme Court of Judicature (Consolidation) Act 1925 repealed and consolidated into Supreme Court Act 1981, with provision for Vexatious Litigation Orders enacted in section 42 Supreme Court Act 1981, with current restriction on appeals from refusals of leave to institute "civil proceedings" contained in section 42(4) Supreme Court Act 1981.

6. Subsequently, Vexatious Orders divided into Civil Proceedings Orders and Criminal Proceedings Orders as result of further amendments to that Act made by section 24 Prosecution of Offences Act 1985, contained in section 42(4) Supreme Court Act 1981.

 

 

 

SCOTTISH LEGISLATION

1. Vexatious Actions (Scotland) Act 1898 enacted in Scotland with no prohibition of appeals against refusals of leave to institute "legal proceedings" from Lord in Ordinary, in identical terms to provisions in England and Wales, which did not extend to Ireland by section 2(1) Vexatious Actions Act 1896.

2. Vexatious Actions (Scotland) Act 1898 continued in force in Scotland in its original form until 1980, when also amended by section 19 Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, which unlike England and Wales has been only amendment since 1898.

3. This provided that decision of Lord in Ordinary to refuse leave to institute "legal proceedings" was "final" and in effect barred any subsequent appeals to Inner House of Court of Session as court of appellate jurisdiction in Scotland.

4. This even harsher than section 1(2) Supreme Court of Judicature (Amendment) Act 1959 in England and Wales, as application for obtaining such leave in Scotland, unlike England and Wales and Northern Ireland, and now Guernsey where oral hearings held in chambers, is dealt with on papers only by Lord in Ordinary, who notifies applicant by letter.

5. However, no current prohibition in Vexatious Actions (Scotland) Act 1898 against making of applications in ongoing "legal proceedings", unlike section 42(1A)(c) Supreme Court Act 1981.

6. Differentiation between civil and criminal orders also never enacted in Vexatious Actions (Scotland) Act 1898 at all, although private criminal prosecutions in Scotland very rare indeed in any event.

 

 

 

NORTHERN IRISH LEGISLATION

1. Vexatious Litigation Orders not introduced into Northern Ireland until enactment of section 32 Judicature (Northern Ireland) Act 1978 as result of Direct Rule from Westminster.

2. This because Vexatious Actions Act 1896 when enacted did not apply to Ireland, see section 2(1) of that Act, and no legislation introduced from 1921 by Stormont either.

3. Section 32(1) Judicature (Northern Ireland) Act 1978 did not and still does not prohibit any subsequent appeal or challenge to Northern Ireland Court of Appeal from refusal of leave to institute "legal proceedings" by judge in chambers.

4. Furthermore, no prohibition on any such appeal or challenge contained in section 35(2)(a)-j) Judicature (Northern Ireland) Act 1978, which then equivalent provision in Northern Ireland to section 31(1)(a)-(l) Supreme Court of Judicature (Consolidation) Act 1925 which now consolidated in section 18(1)(a)-(h) Supreme Court Act 1981.

 

 

 

IRISH REPUBLIC

1. No separate enactment was passed relating to Ireland from 1896 until partition in 1921, and it appears that no similar legislation was ever subsequently enacted by the then Irish Free State after 1922.

2 Republic of Ireland has not introduced similar legislation to restrain Vexatious Litigants since it came into being as a separate Republic.

 

 

 

GUERNSEY LEGISLATION

1. In Guernsey, Restriction of Vexatious Legal Proceedings (Guernsey) Law 1985 was brought into being by Order in Council which does not extend to either Alderney or Sark.

2. Legislation is identical in effect and provision to section 42 Supreme Court Act 1981, apart from fact that Orders when made only restrict "legal proceedings" in Magistrates’ Court in its civil capacity under section 1(1) Restriction of Vexatious Legal Proceedings (Guernsey) Law 1985.

3. However, Order although made by Royal Court, and from which any subsequent leaves to institute proceedings in Magistrates’ Court must be obtained under section 1(3) Restriction of Vexatious Legal Proceedings (Guernsey) Law 1985, does not restrict "legal proceedings" per se in Royal Court itself, which has its own inherent powers and is equivalent superior court of record to High Court in England and Wales.

4. Contended that provisions of section 42 Supreme Court Act 1981 therefore discriminatory vis à vis complete lack of restriction relating to legal proceedings in higher courts in Guernsey jurisdiction, as considered remedies in Royal Court sufficient without additional statutory prohibitions.

5. In Jersey jurisdiction, litigants in person have to obtain Order of Justice requiring Bailiff to sign document which can be declined if proposed action obviously vexatious.

6. Alternatively, litigants in person may apply by representation before Royal Court that again can be declined if proposed action obviously vexatious.

7. In respect of any refusals of Bailiff or regarding application by Representation, litigant has right of appeal to Jersey Court of Appeal.

8. Litigant in person may however issue summons without any leave where sum claimed is liquidated only.

9. Would therefore appear that in Jersey jurisdiction, system is very similar to that currently proposed by Otton LJ requiring all litigants in person to obtain leave of District Judge or Master prior to issue of proceedings.

10. Contended that these proposals should be implemented as soon as possible to assist litigants in person, provided that there are full avenues of appeal against any arbitrary or wrongful refusals of such leaves, which would then render provisions of section 42 Supreme Court Act 1981 otiose.

11. So far, no Orders have been made in Guernsey jurisdiction since these provisions were enacted by Order in Council in 1985.

 

 

 

ISLE OF MAN, REMAINING CHANNEL ISLANDS AND GIBRALTAR

1. No similar legislation at all has been passed by the Parliaments of the Isle of Man or Jersey, Alderney or Sark, or by any Order in Council.

2. There is no specific provision in force in Gibraltar, but by section 12 Supreme Court Ordinance all of the powers of the High Court in England and Wales are in force in that jurisdiction in the Supreme Court of Gibraltar, including the power to make a "Civil Proceedings Order" but this has so far not been utilised.

 

 

 

DISCRIMINATORY EFFECTS OF NORTHERN IRELAND LEGISLATION AND LEGISLATION IN ENGLAND PRIOR TO 1959 AND SCOTLAND PRIOR TO 1980

1. It therefore follows that in England and Wales, there was right of appeal against wrongful refusal of leave of High Court to permit institution of "legal proceedings" from 1896 until 1959, and in Scotland from 1898 until 1980, and this is still also case in Northern Ireland.

2. In Ex parte Ewing (No 2) (1994) 1 WLR 1553 Bingham MR at page 1558 paras B-C held,

------------------------------------------------------------------------------"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. Ord. 59, r. 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."-----------------------------------------------------------------------

3. If Ex parte Ewing (No 2) (1994) 1 WLR 1553 correctly decided "that section would be emasculated and the obvious intention of Parliament frustrated," then previous provisions in England prior to 1959 and Scotland prior to 1980 did not bite at all, and same must be currently true of legislation in Northern Ireland.

4. Contended that Ex parte Ewing (No 2) (1994) 1 WLR 1553 decided per incuriam if these statutory predecessors to section 42 Supreme Court Act 1981 and provisions with amendments in Scotland and current Northern Ireland provisions not cited and Bingham MR would have come to different conclusion regarding "emasculation".

5. Ex parte Ewing (No 2) (1994) 1 WLR 1553 not therefore binding on subsequent Court of Appeal, see Young -v- Bristol Aeroplane Co Ltd (1944) KB 718, (1944) 2 All ER 293, per Greene MR at page 298 paras D-G.

6. See also Rakhit -v- Carty (1990) 2 All ER 202 where Court of Appeal did not follow Cheniston Investments Ltd -v- Waddock (1988) 2 EGLR 136 because it had been given in error on mistaken assumption that Court was bound by Kent Millmead Properties Ltd (1982) 44 P & CR 353, which itself had been given per incuriam in ignorance of a relevant statutory provision.

7. This follows Williams -v- Fawcett (1985) 1 All ER 787 and Rickards -v- Rickards (1989) 3 All ER 193, which held that cases should not be binding if there could be clearly detected an error and there was no possibility of a further appeal to House of Lords. For full discussion see The English Legal Process 5 Edition by Terence Ingman at page 273-274.

8. Contended therefore that making of any "Civil Proceedings Order" against Respondent would be discriminatory vis à vis other equivalent provisions in Scotland, Northern Ireland and Guernsey, and the complete non-existence of similar statutory provisions elsewhere in the British Isles.

 

 

 

Dated the 4 day of October 2000 Signed

 

 

 

 

 

ANDREW JAMES COVEY

Respondent

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