Neutral Citation Number:  EWHC Admin 608
IN THE HIGH COURT OF JUSTICE CO/1027/2001
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Thursday, 14th June 2001
B e f o r e:
LORD JUSTICE LATHAM
MR. JUSTICE FORBES
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HER MAJESTY’S ATTORNEY GENERAL
MICHAEL BOOTHE-CHAMBERS (known as Mike Chambers)
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MR. A. TOLLEY (instructed by the Attorney General) appeared on behalf of the Appellant.
THE RESPONDENT appeared in Person.
J U D G M E N T
Thursday, 13th June 2001
J U D G M E N T
1. LORD JUSTICE LATHAM: This is an application by Her Majesty’s Attorney General for an order under section 42(1) of the Supreme Court Act 1981 against the respondent. The order which the Attorney General seeks is a civil proceedings order under that section, which provides as follows:
“If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground --
(a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or
(b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another; ...
the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order...”
2. The effect of a civil proceedings order is that no civil proceedings shall, without leave of the High Court, be instituted in any court by the person against whom the order is made, that any civil proceedings instituted by the person shall not be continued without the leave of the High Court and that no application other than one for leave under the section should be made by that person in any civil proceedings instituted in the court by any person without the leave of the High Court.
3. There is no doubt that an order made under the section is a significant infringement of a citizen’s access to the courts, and accordingly the material upon which a court is asked to make such an order must be such as to fully satisfy the court that the provisions of the section have been met. Those require this court to be satisfied firstly that the person in question has habitually and persistently brought proceedings. That involves an element of repetition, reliance upon essentially the same cause of action or other matters which indicate that there is an element of persistence. The proceedings, which must have been brought habitually and persistently, must have been proceedings which were not based on any reasonable grounds and were vexatious; and that requires the court to consider the extent to which there was any proper substance in the proceedings and whether or not, in the bringing of proceedings or the making of applications, it appears to the court that the individual in question has been pursuing some ulterior motive or has otherwise been abusing the processes of the court.
4. In determining the extent to which it can be properly be said that proceedings do not have any reasonable basis and are vexatious, this court is entitled to rely on the conclusions of the judges in the underlying proceedings that the litigant’s conduct in those proceedings has been vexatious, has involved the bringing of an action without any reasonable grounds or has been an abuse of process.
5. In the present case, as with so many cases which unhappily come before this court on an application by the Attorney General for such an order, the underlying dispute can be relatively shortly stated. The underlying dispute which has spawned the majority of the litigation about which complaint is made arose out of the breakdown of the relationship between this respondent and his then partner at the end of the 1980s. The result was that there were applications made by his partner for custody of the children and for financial orders. The first order made by the court was that the custody of the children be granted to the partner and that the respondent pay £37,500, essentially to provide a home for the children.
6. The respondent did not accept the justice of those orders, and indeed has never accepted their justice or the justice of proceedings which were taken thereafter which were intended to give effect to the original proceedings. In the first instance the respondent appealed. The appeal was dismissed. There was an application for an extension of time for obtaining leave to appeal to the Court of Appeal which was made in 1997 and was dismissed by Mr. Registrar Adams. In relation to those proceedings, the number of other applications were such that District Judge Turner, on 10th June 1998, ordered that there be no further applications without the leave of an appeal judge. There was an application for permission to make a further application in those proceedings by the respondent which was refused by the District Judge on 2nd December 1998.
7. In the meantime, the respondent commenced proceedings for a residence order in October 1992. That application was dismissed on 19th January 1993. An application for leave to appeal was dismissed by the Court of Appeal on 9th May 1994. The matter was brought back before the court by the applicant by way of an application which was dismissed by his Honour Judge O’Malley on 26th April 1995 and, in view of the history of the matter, that same judge made an order that there be no further applications for residence by the respondent for two years. Then there was a further order by District Judge Turner on 18th July 1996 that there be no further applications without the leave of the court.
8. The respondent having failed to pay the lump sum order, his former partner took two separate sets of proceedings in order to seek enforcement. Firstly, but improperly, bankruptcy proceedings were taken. An order was made by District Judge Turner on 17th June 1994. Fortunately that error was put right shortly thereafter, on 21st June 1994, when the order was annulled, the reason being that the basis of the bankruptcy order had been a demand which was based upon the lump sum order which did not create the type of debt which could found a proper statutory demand.
9. Secondly, the respondent’s former partner applied on 21st December 1994 for an order for sale of the respondent’s property pursuant to a charging order previously obtained. An order for sale was made by District Judge Turner on 10th May 1995. An appeal was dismissed by his Honour Judge Cotterill on 3rd July 1995. An application to discharge the charging order underlying that order was dismissed by District Judge Turner on 14th February 1996. An appeal against the order of 14th February 1996 was dismissed by his Honour Judge Cotterill on 12th July 1996. An application for leave to appeal to the Court of Appeal was refused by the Court of Appeal on 27th January 1998; and an application to petition the House of Lords was refused by the Court of Appeal on 13th March 1998. Proceedings were subsequently taken in relation to that same property by the Midland Bank on 11th April 1995, and an order for possession in its favour was made on 19th October 1995. But that order was suspended thereafter, and was indeed overtaken by events.
10. In July 1995 the respondent considered was that money had not been provided properly to his former partner and children by way of income support. He therefore sued the Department of Social Security in that regard in negligence. His claim was struck out by District Judge Williams on 31st October 1995 as disclosing no reasonable cause of action. An appeal was dismissed by his Honour Judge Rutherford on 13th December 1995.
11. In July 1995, the respondent again took proceedings against his former partner, alleging that in some way she was in breach of contract in relation to both the financial claims she had made and in relation to the children. Those proceedings were struck out by District Judge Turner on 7th May 1996 as an abuse of process. An appeal was dismissed by his Honour Judge Cotterill on 2nd July 1996. An application for leave to appeal was refused by the Court of Appeal on 27th January 1998. An application for leave to petition to the House of Lords was refused on 13th March 1998.
12. At the end of 1995 the National Provincial Building Society, which subsequently became the Abbey National, took proceedings against the respondent for possession of the same property, arising out of his failure to meet the mortgage instalments. An order for possession was made by District Judge Turner on 7th May 1996. The same pattern can be seen thereafter in what respondent did. His appeal was dismissed by his Honour Judge Cotterill on 12th July 1996. An application for leave to appeal was dismissed by the Court of Appeal on 7th April 1998.
13. There were many applications to set aside the possession order. They resulted in a Grepe v. Loam order, made by District Judge Turner on 10th June 1998 and leave to issue applications was refused by District Judge Turner on three subsequent occasions. Appeals from these were dismissed by his Honour Judge Neligan on 17th August 1999 and by the Court of Appeal on 13th June 2000. A further application to set aside the possession order was refused by District Judge Turner on 9th March of this year and an appeal against that order was lodged on 21st March of this year.
14. The respondent has throughout asserted that the Abbey National and its predecessor had been acting wrongly in seeking a possession order and that the court had also acted wrongly in maintaining the order for possession despite his repeated applications. In March 1998 he brought proceedings against the Abbey National and their solicitors, alleging negligence. The action against the solicitors was discontinued by consent. The action against Abbey National was struck out by District Judge Turner on 4th September 1998 as disclosing no reasonable cause of action. An appeal was dismissed by his Honour Judge McIntosh on 16th October 1998. There are two appeals to the Court of Appeal in relation to those orders which have been stayed pending the outcome of these proceedings. Nonetheless, a further set of proceedings on 15th April 1998 in similar terms was brought against both the Abbey National and the solicitors. These proceedings were struck out as disclosing no reasonable cause of action by District Judge Turner on 18th June 1998. An appeal against that order was dismissed by his Honour Judge McIntosh on 16th October 1998.
15. In May 1998 the respondent brought proceedings against the solicitors who had acted for his partner at the time of the obtaining of the bankruptcy order, and that action was struck out as an abuse of the process by District Judge Turner on 21st October 1998. An appeal was dismissed by his Honour Judge Griggs on 7th December 1998, in the absence of the respondent. He then applied for that order to be set aside, but that was dismissed by his Honour Judge Roach on 17th May 1999.
16. On 15th July 1998 the respondent brought proceedings against his former partner for breaches of the “Family Law Act”. The action was struck out as an abuse of process by District Judge Turner on 7th August 1998.
17. On the same day the respondent brought proceedings against the Court Service, alleging delay in listing applications in the original residence order. The action was struck out as disclosing no reasonable cause of action and being frivolous and vexatious and an abuse of the process of the court by District Judge Turner on 17th December 1998. The appeal was dismissed in the absence of the respondent by his Honour Judge Cotterill on 8th January 1999. An application to set aside that order was dismissed by his Honour Judge Roach on 17th May 1999.
18. The order for possession granted in favour of the Abbey National Building Society was ultimately effected by the issue of a warrant of possession, and the Abbey National sought to remove the respondent from the property.
19. In the process there were clear disputes as to what had happened. Those have resulted in further litigation in 1999 and this year.
20. On 24th February 1999 the respondent brought proceedings against the Abbey National for the return of goods. An interpleader summons was dismissed with no order as to costs by District Judge Turner on 14th May 1999 and the claim was ultimately dismissed by District Judge Turner on 22nd November 1999, although the respondent informs us that that was as a result of his in fact having himself recovered the property in question.
21. On 25th May 2000 the respondent brought proceedings against the Abbey National for unlawful sale of the claimant’s property and unreasonable trading practices. The claim was struck out of the court’s own motion by District Judge Turner on 12th June 2000. An application to set aside the order of the District Judge was dismissed by Deputy District Judge Horsey on 2nd August 2000, with costs assessed at £2000. Leave to appeal was refused. An appeal notice dated 1st October 2000 was filed. Leave to appeal was refused by his Honour Judge Overend on 2nd March 2001 as an abuse of process. Further applications in those proceedings were refused by District Judge Turner on 9th March 2001, and an appeal against the order of that date was lodged on 21st March 2001.
22. Finally, on 25th May 2000, the respondent brought proceedings against a Mr. Richard Peek of Wallover Property Developments. In fact the proceedings were not proceeded with against Mr. Peek, but they were against Wallover Properties. These were claims made in relation to the occupation by Wallover Properties of the respondent’s former home which Wallover Properties had purchased from Abbey National. The claim asserted an unlawful claim to property, damage to a Grade II listed building, theft and trespass, together with an application for injunction. The position was that, so far as the respondent was concerned, firstly Abbey National should never have obtained possession of the property as they were not entitled to it despite the orders of the court, and secondly that Abbey National did not obtain good title to the property title which remained with him. Abbey National therefore had no title to pass to Wallover Properties; and consequently he was entitled to occupy the property. He further alleged that damage had been done to the property for which he was entitled to sue. The claim was struck out by District Judge Turner on 23rd August 2000, save for certain claims in respect of theft and trespass which the District Judge classified as claims for conversion of certain personal property. An application for leave to appeal the order was refused on 13th November 2000 as having no reasonable prospect of success and being frivolous and vexatious. The issues in relation to conversion were listed for a small claims hearing on 8th February 2001, and judgment for the respondent was given in the sum of £250, not to be enforced without the court’s permission. The application by the respondent for permission to appeal was refused. An application to the court for leave to appeal those orders was refused on 9th April 2001, and an application to set aside the order of 9th April was made on 26th April 2001.
23. In addition to those proceedings, which all arise directly or indirectly out of the original dispute between the respondent and his former partner and the subsequent orders made in respect of his property, there were a number of further actions which are set out in the schedule to the affidavits of Mr. Trueman and which support the application by the Attorney General. There are 11 which do not directly relate to the underlying background matters. So far as those actions are concerned, there is some dispute as to precisely what has transpired. None of the actions has actually proceeded to judgment except two, in both of which judgment was obtained by the respondent in default of defence against the defendants. So far as the other matters are concerned, they would appear to remain undisposed of at the moment. Some indeed have been stayed by reason of the automatic stay provisions of the Civil Procedure Rules.
24. There is, however, in relation to one of those cases, an outstanding appeal to the Court of Appeal. That is an action by the respondent against a Mr. Dymond for breach of contract. The action was originally struck out by Judge Roach on 17th May 1999 for failing to comply with an unless order dated 17th November 1998. An application for permission to appeal and an extension of time for serving notice of appeal was filed on 17th June 1999. The application was allowed by the Court of Appeal on 1st June 2000, the substantive appeal (by reason of the coming into effect of the Civil Procedure Rules) to be heard by a High Court judge. That appeal remains outstanding.
25. There is another claim, which does indeed arise out of the original claims but only indirectly, that is an action by the respondent against the solicitors who were acting for him at the time of the custody dispute, Messrs. Chanter Ferguson. So far as those proceedings are concerned, the present position is that there was an application by the defendants to strike out the claim. That was dismissed by District Judge Turner on 2nd July 1999. An amended defence was entered on 19th July 2000 and an application to strike that out was dismissed on 12th July 2000. The trial has been adjourned pending the outcome of these proceedings. The claim, in so far we are able to glean from the papers before us, is simply in this form:
“In May 1993 the Plaintiff did instruct the Defendant to represent him in 2 appeals (1) residence dismissal (2) dismissal of an appeal against an award. My case was designated to a ‘recently qualified’ solicitor, who as it turned out misrepresented my cases to Queens Council and made prejudicial remarks to that QC. In particular she passed on historical information she could only get from the opposition, who in fact ‘joined’ the above firm at that time. ... I now seek to be compensated.”
26. There are a further two actions in respect of which it would appear that the proceedings have been stayed and in respect of which the respondent says that he in fact received the sums that he claimed and he simply failed to take the administrative steps to deal properly with the proceedings in court. We are prepared to accept that that is the case.
27. That is the background against which the Attorney General seeks to persuade us that the provisions of section 42 have been made out.
28. The respondent, in a very full skeleton, has set out his side of the story. He has made it clear that in his view the court’s decisions in relation to the children were wrong; that the court’s decisions in relation to property were wrong; and that all he has sought to do since then has been has been to exercise his rights, as he sees it, to make sure that the court at any given time is brought up-to-date with the factual situation, which he submits entitled him to make applications, in particular to stay the possession orders from time to time, in order that the current position could be examined by the court. He submits that whilst he accepts that he has been persistent, he has been justifiably persistent and he has only been seeking to assert his proper rights. In particular, in relation to the latest proceedings in relation to the property, he maintains that Abbey National has no title to what he perceives to be his property and that he was in effect unlawfully evicted from that property. He asserts that he has good title to it which he is entitled to both assert and defend.
29. Having considered the history of the matter, it seems to me that the history as it relates to the claims based upon his broken relationship with his former partner and the property make it abundantly plain that he has indeed, in the words of the section, habitually and persistently, and without any reasonable grounds, instituted vexatious civil proceedings and made vexatious applications. That is the consistent and persistent pattern in each of the actions which I have identified.
30. Those actions have undoubtedly resulted in substantial expense to the other parties. It is to be noted that underlying the whole of these proceedings is an order for a payment of £37,500 by way of a lump sum to his former partner, which has never been paid. At no stage, despite orders for costs being made against him, has he in fact paid any costs to the successful parties. Despite the fact that he has, in relation to two separate actions, been subject to Grepe v. Loam orders, he failed to moderate in any way his behaviour in relation to those proceedings.
31. It is plain, therefore, that unless an order is made under section 42 the respondent will continue to make applications to the courts which will cause vexation by reason of the persistence with which he will pursue those proceedings. As can be seen from the history I have related, the proceedings about which complaint is made are on-going, and applications have been made this year which make it clear to me that an order under section 42 is necessary in the interests of justice.
32. It must be remembered that one of the purposes of the legal system is to try to secure finality in disputes between parties, in order that the parties may thereafter be able to regulate their lives in accordance with the order of the court. That is one of the fundamentals of a legal system, and the proceedings in which the respondent has been engaged seem to me to be designed to undermine that principle. The consequence, in my judgment, is that the Attorney General has fully made out the case for the order, and I would make the order subject to only one exception.
33. The exception is in relation to the action described as Action 13. In respect of those proceedings the respondent has obtained permission to appeal from the Court of Appeal, albeit the appeal itself is to be determined by a High Court judge. The court has clearly considered, therefore, the extent to which it is appropriate for those proceedings to be pursued and there is no need in those circumstances for this court to provide the protection of section 42.
34. The only other action in respect of which I considered it at all appropriate to make an exception was the action which is identified as Action 20. That is the action against the solicitors where the defendants were unsuccessful in applying to strike out the proceedings. However, in view of the material that we have which I have identified as to the nature of the claim, it seems to me that it would be sensible if the section 42 order were to apply to those proceedings in order to ensure that if and in so far as there is any substance in the claim that has been made it can be properly identified. If there is no such substance, then those proceedings can be put to rest.
35. Accordingly, and with the one exception that I have identified, I would make the order asked.
MR. JUSTICE FORBES: I agree and I have nothing to add.
MR. TOLLEY: My Lords, I am grateful. I will ensure that a draft of the order is before the court as soon as possible and provides for the exception by the case number in relation to the cases your Lordship identified.
LORD JUSTICE LATHAM: Thank you very much, Mr. Tolley. Mr. Chambers, thank you for the material which you provided us and for the moderation with which you put forward your submissions.
MR. TOLLEY: My Lord, may I make one final point? It is to note that the application was brought against the name of Mr. Boothe-Chambers and some arguments were filed in the name of Mr. Chambers. But Mr. Chambers indicated at the beginning of the hearing that he was content to be addressed as Mr. Chambers. May I draft the order as against Mr. Boothe-Chambers but, in brackets, Michael Chambers.
LORD JUSTICE LATHAM: Can I suggest that you adopt the form adopted in his witness statement, that is to say his full name and “known as Mike Chambers”.
MR. TOLLEY: I am grateful, my Lord.
MR. CHAMBERS: Sir, one final point. The gentleman in the back of the court was talking to me earlier this morning, saying there is a right to appeal. I did not think there was.
LORD JUSTICE LATHAM: You have the opportunity to appeal the decision to the Court of Appeal, but you have to ask for permission.
MR. CHAMBERS: That’s what I’m asking, your permission.
LORD JUSTICE LATHAM: Yes. The way it was put suggests that he was advising you that you have the right to appeal. The answer is that you do not have the right to appeal but you have the opportunity to appeal if you are given permission, and we refuse permission. If you wish to appeal, you must therefore make your application to the Court of Appeal.
MR. CHAMBERS: Sorry, the gentleman has just said that you should make a period for it to run.
LORD JUSTICE LATHAM: It is in fact an unlimited order. Thank you.
MR. CHAMBERS: The judgment of Lord Justice Woolf (inaudible)
LORD JUSTICE LATHAM: I have intended, and so there is no doubt about, for it to be an unlimited order. That simply means that it is one which is not limited in point of time, but you can apply to discharge it if you think it is appropriate.
Attorney General v Boothe-Chambers (December 19, 2001)
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