Royal Courts of Justice Strand

London WC2

Tuesday, 18th November 1997

B e f o r e:




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(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited,

180 Fleet Street,

London EC4A 2HD

Telephone No: 0171-831 3183

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

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The Applicant appeared in person and was not represented.

MR R JAY (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.


(as approved)

Crown copyright

Tuesday, 18th November 1997

LORD JUSTICE SCHIEMANN: On 28th January 1997 there were before the Court of Appeal 18 renewed applications for leave to move for judicial review and two applications for leave to appeal. All 20 applications had been made by Miss Brookner. They related to proceedings concerning a variety of different matters which were commenced on various dates between 18th August 1995 and 20th August 1996. Each of these 20 applications was refused by the Court of Appeal.

The Master of the Rolls delivered a judgment with which the other members of the Court, Thorpe and Waller LJJ, agreed. I do not propose to lengthen this judgment by setting out that judgment at length. I direct that it be appended to this judgment and that the two be read together.

The Master of the Rolls concluded by saying, at page 14:

“In the circumstances, I consider this is a case which the Attorney General should consider as to whether it is appropriate to make Miss Brookner a vexatious litigant. I believe that course may be in Miss Brookner’s own interest. She has expended a huge amount of energy in bringing all these applications before the courts below and this court. It would have been no kindness to her to have allowed any of the applications to proceed because they were doomed to failure. The position is one where Miss Brookner finds it very difficult to accept the reality of the situation, although I would strongly urge her to do so and try and put these matters of which she complains behind her.”

On 14th August 1997 the Solicitor General acting on behalf of the Attorney General authorised the making of an application to this Court, pursuant to section 42 of the Supreme Court Act 1981, for a Civil Proceedings Order against Miss Brookner. The effect of the making of such an Order is set out in subsection 1(a) of section 42. Put very shortly, Miss Brookner would not be able to litigate without first satisfying a High Court Judge that the litigation which she proposed was not an abuse of the process of the Court and that there were reasonable grounds for the proceedings or application in question.

The appropriate test for this Court in this type of proceedings was laid down In Re Vernazza [1961] QB 197. Three matters have to be shown.

1. The legal proceedings must be vexatious.

2. There must have been no reasonable ground for bringing them. This is an objective test for the Court to decide; we are not engaged on deciding whether the Respondent was acting maliciously or otherwise than in good faith.

3. Such proceedings must have been instituted habitually and persistently.

In the case of proceedings with no public law element, it is clear that the mere fact that a person has lost proceedings instituted by him does not involve a finding by the Court that those proceedings were instituted without reasonable grounds. However, where such proceedings have been struck out as involving an abuse of the process of the Court, or being otherwise vexatious, the position is different. As Lord Donaldson in Attorney General v Jones [1990] 1 WLR 859 at 863F indicated, any Court subsequently hearing an application under section 42 must work on the basis that the decision of the judge who struck the civil proceedings out was correct:

“The judgment of the Divisional Court in the present case sets out in detail the conduct of

Mr Jones which is relied upon by the Attorney-General and that court’s view of that conduct. No useful purpose would be served by reproducing it or summarising it in this judgment. In some instances the court held that particular proceedings or steps in proceedings could not be said to have been instituted or taken without reasonable grounds, but what remained abundantly justified its conclusion that Mr Jones had habitually and persistently and without any reasonable ground instituted vexatious civil proceedings and made vexatious applications in such proceedings and that there was no option but to make a civil proceedings order for the protection of those whose paths crossed those of Mr Jones. Any court is very properly reluctant to make such an order and the circumstances in which it becomes necessary to do so are always sad. The present case is no exception, since Mr Jones, who was a member of the Bar, has demonstrated a vast amount of misplaced industry and a very considerable knowledge of the law which is wholly wasted because of his complete lack of judgment and of any understanding of the purpose of the law which is to do justice.

I would dismiss the appeal.”

We are not concerned with such proceedings, but with public law proceedings: largely judicial review proceedings. In such cases a would be litigant is not free to bring such proceedings unless he has first obtained the leave of the Court: the Rules of the Supreme Court, Order 53 r. 3(1). The Court will refuse leave if there is no prospect of success. That can be called a compulsory ground for the refusal of leave. By contrast the Court may refuse leave on a number of other grounds, including delay. That can be called a discretionary ground. Where the Court refuses leave on the ground that there is no prospect of success, the situation is, in my judgment, equivalent to an action being struck out as being vexatious. To make an application for leave to make an application for judicial review, which latter application has no prospect of success, is manifestly to bring proceedings without reasonable grounds.

Where the Court refuses leave on one of the discretionary grounds the position is less clear cut. In some cases it will have been perfectly reasonable to try and persuade the Court to act, in others it will not. Whether it was reasonable to make the attempt to persuade the Court to exercise its discretion in favour of the application, will need to be judged by the Court hearing the section 42 application. In such cases the original judge was concerned with the question: “Should I exercise my admitted discretion in the Applicant’s favour?” whereas the Court hearing the section 42 proceedings is concerned with a different question: “Was the attempt to persuade the judge to exercise his discretion in the Applicant’s favour one which was made without reasonable prospects of success”?

I turn from these preliminary remarks to the present case. In his judgment in the Court of Appeal the Master of the Rolls dealt with the cases in groups. I propose to do the same. Unfortunately in the present proceedings those preparing the case for the Attorney General have not followed the numbering which was adopted by the Master of the Rolls, but have substituted a numbering of their own in a schedule numbered MBA2 which is exhibited to the affidavit of Mr Akiwumi. They have done so for the perfectly good reason that they wish to set matters out chronologically. I propose to adopt Mr Akiwumi’s numbering but to follow the order adopted by the Master of the Rolls in his judgment, giving the transcript reference in the judgment for ease of reference.

The Master of the Rolls was dealing with the following categories of case:

Numbers 8 to 11 are dealt with in the transcript between 5F and 7A. The Court’s conclusion can be found at 6F and reads:

“These are only renewed applications for leave. They are not determinations of any appeal, nor are they determinations of applications for judicial review. Having considered all the contentions that the applicant wishes to make, and having taken into account the decisions of both judges, the conclusion which I have reached is that these are not cases in which it would be right for this court to give leave to apply for judicial review in relation to any of the matters upon which the applicant wishes to rely. They are not matters which could be appropriately investigated on an application for judicial review and, furthermore, on the material which is before the court, there is no prima facie case justifying such a review.”

The next batch are numbers 22 and 23 dealt with in the transcript at 7B to F. The Court’s conclusion was that an earlier case had decided that the Court had no jurisdiction and that the Court was bound by it.

The third batch were numbers 2 to 6 dealt with in the transcript from letters 7F to 10F. The Court concluded at 9E that there were no arguable grounds for judicial review in relation to numbers 2, 3, 4 and 6. In relation to number 5 the Court expressed its conclusion thus at 10C and D:

“... I would adopt the approach of the judge, which was that a number of the complaints do not raise points which are amenable to judicial review. A number of the matters are stale, the affidavit does not support the grounds and there are no arguable grounds shown justifying judicial review.”

The fourth batch are numbers 12 and 13 dealt with in the transcript at 10F to 11E. The position here is that Miss Brookner made various complaints before the Industrial Tribunal. She lost. She appealed to the Employment Appeal Tribunal. She lost. She sought to obtain from the Court of Appeal leave to appeal to the Court of Appeal. She failed to get it. She then started proceedings for judicial review of the Industrial Tribunal and of the Employment Appeal Tribunal’s decisions. It was these applications which were numbered 12 and 13 in the schedule. She failed to get leave to move at first instance and failed again before the Court presided over by the Master of the Rolls.

The next batch is numbers 14 and 17 dealt with in the transcript at pages 11F to 12C. The Court expressed its conclusion shortly by saying that it was not a case where it would be appropriate to give leave. The last batch are numbered 18 to 20 dealt with in the transcript at 12C to 13F. The Court decided at 13E that there were no possible grounds for allowing Miss Brookner to proceed with those applications for judicial review.

So much for the cases which have been considered by the Court of Appeal.

There is also before us a decision of the Divisional Court which is number 1 in the schedule prepared by

Mr Akimumi. This also is an application for leave to move for judicial review. It was refused by Brooke J and a Divisional Court presided over by Rose LJ. The Divisional Court decision is dated 29th July 1997 and is thus after the Court of Appeal decision, to which I have referred. It related to an application to challenge the dismissal by Knightsbridge Crown Court, on 16th September 1994, of an appeal by Miss Brookner from a decision of a Magistrates Court that she was guilty of a summary offence against section 5 of the Public Order Act 1986. The application was refused on the basis that there were: “no arguable grounds upon which leave could be granted.”

Then in the schedule we also find numbers 21 and 24. The material in relation to these matters is not at present in a state which would, in my judgment, entitle this Court to take them into account in coming to a conclusion on the section 42 application. Therefore, I dismiss them from my mind. So much for the background before us.

Miss Brookner submitted that in every case the Court of Appeal had misunderstood the law and come to the wrong conclusion. She made the same submission in relation to the Divisional Court. For the reasons which I gave at the beginning of this judgment, I do not consider that this Court is entitled to go behind those decisions where it was decided that Miss Brookner had no prospect of success. There are very many of these. Indeed, it is arguable from the passage at page 14C of the Court of Appeal judgment, to which I have already referred, that it may be that the Court took the view that they all fell into this category.

Miss Brookner told us that she had researched the law as best she could. It is clear that she has and from time to time she produced a proposition which it would be difficult to fault. However, I was not persuaded by her, in relation to any of the cases, that the Court of Appeal, or this Court, had erred. On the contrary, in relation to many of them I was positively persuaded that those decisions were manifestly right.

I am satisfied that she has habitually and persistently, and without reasonable grounds, instituted vexatious civil proceedings and made vexatious application in civil proceedings and that it would be appropriate to make a Civil Proceedings Order.


LORD JUSTICE SCHIEMANN: Are there any applications?

MR JAY: My Lord, no. Miss Brookner has left Court.

LORD JUSTICE SCHIEMANN: I record that Miss Brookner has left Court. I did not see that as I was reading my judgment and notes. There is no application from the Attorney.

MR JAY: The practice of the Attorney is not to ask for costs on these occasions. A word of explanation is perhaps required in relation to MBA2 and the lack of harmony between the numbering of that schedule.

LORD JUSTICE SCHIEMANN: You do not need to apologise. I can see why it was done that way. I indicated that it is done chronologically.

MR JAY: The position is that the transcript of the Court of Appeal judgment was only available to the Treasury Solicitor at the end of last week. Had it been available when the MBA2 was prepared the Treasury Solicitor would have followed the same numbering, chronological or not.

LORD JUSTICE SCHIEMANN: An outstanding potential problem, which the absence of Miss Brookner has produced, is that if she should wish to appeal she would need leave to appeal. As she has left the Court I am minded to direct that any application that she has to make to this Court be made in writing. Can you see any objection to my pursuing that course?

MR JAY: The Attorney would have no observations to make on the application for leave. It should be made within the next 28 days which I think is the time limit.

LORD JUSTICE SCHIEMANN: I think we can leave it at that.

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