Neutral Citation Number:  EWHC Admin 610
IN THE HIGH COURT OF JUSTICE CO/2322/2000
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Wednesday 18 July 2001
B e f o r e:
LORD JUSTICE BROOKE
MR JUSTICE NEWMAN
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HM ATTORNEY GENERAL
PAULA MAY DOUGLAS
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(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
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MR R JAY QC (instructed by THE TREASURY SOLICITOR, LONDON) appeared on behalf of the Claimant.
THE DEFENDANT APPEARED IN PERSON FOR PART OF THE HEARING
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J U D G M E N T
(As approved by the Court)
1. LORD JUSTICE BROOKE: This is an application by the Attorney General for a civil proceedings order against Paula May Douglas, pursuant to section 42 of the Supreme Court Act 1981. Since these proceedings were instituted the defendant has filed a certificate of acknowledgment, a skeleton argument, a witness statement and has written letters to the court office on a number of occasions. The proceedings have had to be adjourned from time to time. Today, although she had a medical certificate attesting to the fact that she was unwell, and indeed three months ago told the court she waived her constitutional right to attend this hearing, she travelled down to London by a nightcoach in order to address the court. She did not feel well enough to stay during the course of the proceedings, and she left after we had heard her make moderate and courteous submissions for about 30 minutes.
2. This is a sad case. Before I come on to the application made by the Attorney General, from the documents which Miss Douglas has lodged with the court it appears that she comes from a stable background, living most of her life in Manchester, but including five years in Jamaica. There is no family history of psychiatric disorder nor any previous psychiatric history on her part. In 1997 she gave a psychotherapist a history of good adjustment within the family, school and with friends and peers. After returning from Jamaica she continued her education, culminating in an Access course and eventually went to Lancaster University where she gained an Honours degree in law. Since then she went to the College of Law at Chester to undertake the course in legal studies which will prepare her to undertake further training in practise.
3. An event whose echoes resound all through the papers we have read occurred on 8th September 1995 in a classroom teaching situation shortly after she joined the College of Law at Chester, equipped with the law degree she had just obtained. She was the only student present from an ethnic minority and the tutor made a comment about a “nigger in the wood pile”. This clearly distressed her very considerably, and the aftermath of that episode reverberates through the papers. In a subsequent report from the same psychotherapist, written in February 2000, the view is expressed that she developed a significant psychological problem as a result of the difficulties on her course.
4. She impressed both members of the Court when she addressed us this morning, and I was not surprised to read in the papers a reference from her from the project delivery officer of the Moss Side & Hulme Community Development Trust which read:
“Paula has been a client of the [Trust’s] ‘Joblink’ project for approximately 3 years and in this time she has demonstrated her strength of character and identity, honesty, integrity, humour, humility, perseverance, determination, legal knowledge, vitality, professionalism etc.”
5. The writer also said:
“We are also aware of the under-representation of Afro-Caribbean ethnicity solicitors, and in our view, with the correct training Paula would serve a valuable purpose in this role.
Therefore the [Trust] supports any assistance that can be given to Paula in pursuing her chosen career.”
6. That is the history of the matter, and she ended her submissions today by saying that she was willing to give an undertaking, if the Court considered it appropriate, in order to avoid a section 42 order being made which would have a catastrophic effect on what hopes she has of establishing herself in her chosen legal career.
7. This is the character and history of the defendant against whom this application is made, and that is the episode which was the starting point for the unhappy history which followed. The application is supported by a witness statement made by Mr Roger Lutterodt, a solicitor in the office of the Treasury Solicitor. He exhibited 25 bundles of documents which contain relevant documents in each of the 25 sets of proceedings or applications which Miss Douglas has initiated in recent years. As will appear, it is unclear whether one of these sets of proceedings was ever initiated, and a number of the others are applications or appeals made in the course of existing proceedings. We have an extremely helpful schedule of civil actions which form part of the papers before the court, and Mr Lutterodt set out a short summary of the history in these terms:
8.“The Respondent obtained a law degree from Lancaster University in July 1994 and in June 1995 commenced a part time legal practice course “LPC” at the College of Law in London. In September 1995 she transferred to the Chester branch of the College. On 8th September 1995 Mr Bell, a lecturer at the college, made a reference to “nigger in the wood pile”. This most unfortunate and regrettable remark was neither directed at the Respondent, nor was it made maliciously. (Mr Bell immediately apologised to her for it), but it seems to have planted a seed of grievance in the Respondent’s mind. At all events, the Respondent did not see fit to make any formal complaint until August 1996, by which time she had failed her first year examinations. By then, she had already taken proceedings against the National Westminster Bank plc in relation to their refusal to provide a professional studies loan, but this action...was dismissed as groundless on 1st August 1996. In January 1997 the Respondent re-sat her LPC examinations, but failed again. In May 1997 she instituted IT proceedings against the College of Law alleging “racial discrimination and undue pressure within the teaching establishment” but her complaint was out of time and was dismissed. The IT pointed out that, save in relation to the “nigger in the wood pile” remark, the Respondent’s case was without merit in any event. The Respondent sought to appeal to the Employment Appeal Tribunal but leave was refused.
9. In June 1997 the Respondent applied for a position as a paralegal with Clifford, Coppock and Carter, a firm of solicitors. She was told that there were no vacancies until August 1998.”
10. Mr Lutterodt says that her “litigious career commenced with a vengeance in May 1998”. True it is that she instituted proceedings which were withdrawn in that month, but the flood of litigation did not effectively start until September 1998. He says that between May 1998 and February 2000,
“she started 9 County Court actions, 7 sets of IT proceedings and 5 applications for permission to appeal for judicial review. The IT proceedings have invariably been for race and sexual discrimination; the County Court actions (usually against the Law Society, the Manchester City Council and the College of Law) for racial discrimination, ‘breach of disciplinary rules’ and breach of contract. None of these claims have been successful; indeed, the majority have been struck out under the summary jurisdiction.”
11. Mr Lutterodt refers to a judgment, which I think ought correctly to be attributed to Judge Tetlow on 2nd February 1999, which he describes as particularly illuminating, in which the judge observed:
“...in so far as the Plaintiff is using these proceedings and the Employment Tribunal proceedings and the judicial review proceedings, against the Law Society in order to bring pressure on the College of Law, as the Plaintiff is, I find, using the proceedings against the Manchester Council for the Community Relations, that is also an abuse of process.”
12. Mr Jay has helpfully taken us through the detail of the matter. It began with an action against the National Westminster Bank instituted in May 1996 in which Miss Douglas claimed damages for the wrongful refusal of a student loan which allegedly caused economic loss; that action was struck out in August 1996.
13. There was then a gap until March 1997 when she brought proceedings against the College of Law at Chester, in which she claimed compensation for racial discrimination and undue pressure within a teaching establishment. Her complaints, after a reference to the incident on 8th September 1995, included an allegation that she had made a formal complaint to her personal tutor the following week after the comment was made, and the tutor had commented that “she must not worry too much because there may be comments in the text books that may be classed as racially offensive to the politically correct, but such comments are harmless really”. The Tribunal in a reasoned decision dismissed this application as being out of time.
14. Miss Douglas then sought permission to appeal to the Employment Appeal Tribunal. Judge Smith QC dismissed this application. He said the Appeal Tribunal could not fault the way in which the Industrial Tribunal exercised its discretion, “indeed we would exercise that discretion in the same way”.
15. In September 1997 she instituted judicial review proceedings against the Law Society and the College of Law. She was challenging decisions made at a board meeting at the Law Society’s Legal Practice Course and at the Board of Examiners’ meeting at the College of Law. Maurice Kay J refused permission.
16. In May 1998 she made an application to the Employment Tribunal against the College of Law at Guildford claiming racial discrimination and victimisation and complaining of the actions taken, among other people, by the Board of Examiners. There was a response by the Law Society to the effect that the Employment Tribunal did not have jurisdiction over certain matters, or that it was out of time. Her application was then withdrawn.
17. In September 1998 she instituted proceedings in the Manchester County Court on the same day as she withdrew the Tribunal proceedings. On this occasion she claimed damages for negligence and other torts and compensation for race discrimination and victimisation. This was the first substantive action claiming damages in relation to the history which started in September 1995. The Manchester Council for Community Relations were also joined in the proceedings. When she sought to join another defendant, a district judge refused permission.
18. Those proceedings, which are numbers 5 and 6 in the Attorney General’s schedule, were joined by proceedings in the same court issued two months later against the Director of Legal Education and Training of the Law Society claiming damages for race discrimination and damages for mental health, distress and so on, complaining of actions taken between January 1997 and August 1998.
19. There were interlocutory applications in those proceedings. There were also applications for an interim mandatory order against the Law Society requiring it to consider an appeal, and for an adjournment of a costs hearing. An application to have the proceedings struck out and, in one case, for a default judgment to be set aside, were the subject of a substantial judgment by Judge Tetlow in the Manchester County Court on 2nd February 1999.
20. In his judgment he set out the start of the matter and the history of the various dealings between Miss Douglas and the Law Society and its various representatives over the course of the following three years. He considered an issue of res judicata and concluded, on page 19 of his judgment, that the plaintiff was seeking to relitigate what had been decided by a court of competent jurisdiction. This seems to stem from a finding in an earlier Employment Tribunal application when the Tribunal had dismissed the matter as being out of time. On page 25 the judge said that he was satisfied that the claims in the action were an abuse of process and that:
“They are, together with the applications for judicial review and the complaints and appeal from the decision of the Officer for the Supervision of Solicitors, a combination of a war against the Board of Examiners and their refusal to give the Plaintiff what she wants by way of dispensation from examinations. The remark, I am satisfied, is nothing to do with those complaints but has been pressed into service in an attempt to bolster up the Plaintiff’s claim for dispensation.
This court is being asked to visit once more the same things that the college and the Employment Tribunals have already visited and dealt with. In my judgment, such a request is clearly an abuse of process.”
21. So he struck out the claim against the College of Law. He then turned to the action against the Manchester Council of Community Relations, where a claim, among other things, for damages for negligence had been made, and on page 33 of the transcript he concluded that because of the plaintiff’s manner of conducting the previous proceedings or applications, he was convinced that the real purpose behind the proceedings against the second defendants was to bring pressure to bear on the first defendant “to do her will” and he said that that seemed to be an abuse of the process of the court. He therefore struck out those proceedings too.
22. He then turned to other action which had been brought later, and considered the history with which. It was concerned. At page 39 he said:
“...in the light of the above, it is difficult to see how the Plaintiff can succeed against the Law Society when either the Law Society have no power to do what the Plaintiff alleges they can do, or the Plaintiff has no right to bring proceedings. In such circumstances the Plaintiff’s claims are, in my judgment, frivolous and vexatious and an abuse of the court’s procedure."
23. He therefore struck out this action against the Law Society.
24. I pass over action 7 because there is no evidence that those proceedings were ever issued. Action 8 was an application to the Employment Tribunal against the Law Society which was dismissed by that Tribunal when Miss Douglas withdrew her application a few days after Judge Tetlow gave judgment.
25. On 4th November 1998 proceedings were started in this court seeking permission to apply for judicial review. On this occasion the College of Law at Chester and the Office for the Supervision of Solicitors were in the firing line. The subject matter of the complaint is very much a continuing history of Miss Douglas’ unhappiness about the way the Law Society and the College of Law were treating the matter. On 4th January Laws J refused permission, saying that the applicant’s complaints seemed more to relate to the merits. There appears not to have been a renewed application in that case.
26. On 20th November 1998, five days later, Miss Douglas issued another application for permission to apply for judicial review, this time against the Manchester City Council. This related to their treatment of her in an employment situation. Laws J dismissed the application at a brief hearing in court on 16th December 1998.
27. In November 1998 new defendants appeared on the scene. This was a firm of solicitors in Manchester called Clifford Coppock & Carter, and on 20th November Miss Douglas issued proceedings against them for professional negligence. This arose out of the advice they gave, or rather failed to give, in relation to her concerns about the way that she had been treated by the Law Society. A substantive defence was filed. On 23rd February 1999 Judge Tetlow struck out this application.
28. In due course this matter went to appeal. We have been furnished with the judgment of Henry LJ given on 16th February 2000. Henry LJ referred to contemporary documents which came into existence in August 1996. I mention this because of a matter that Miss Douglas told us about this morning which relates to the terms on which the solicitors were acting for her at that time. There was an unresolved dispute as to whether the solicitors were acting pro bono or whether she had signed a legal aid green form. The solicitor who saw her, a trainee solicitor called Mr Emmett, advised her that she might well have a meritorious case to pursue for racial harassment, although they would not be able to represent her in the Tribunal in this matter as they would be unable to obtain legal aid. He advised her to contact her local Citizens Advice Bureau. They knew she had not got the means to instruct them privately, so they declined her instructions and indicated that they would close her file within 14 days.
29. Henry LJ read that letter as declining instructions rather than positively advising either that the Industrial Tribunal was a recommended remedy or that the County Court was not. I will not say anything more about this feature of the dispute, except that it is an issue which is still of concern to Miss Douglas to this day. She complained of a sentence in an affidavit sworn on behalf of these solicitors during the history of her disputes with them, which she maintains was deliberately untrue. Unhappily that firm of solicitors is now in the process of taking bankruptcy proceedings against her in relation to a very substantial unpaid liability for costs. However that may be, the Court of Appeal considered that this was not a case in which to extend time for appealing and dismissed the appeal.
30. The next matter, action number 13, was a County Court proceedings on an entirely new matter against the Director of Social Services and the Director of Housing for the Manchester City Council. She instituted a number of different claims in relation to her treatment when she was employed by the Manchester City Council. These proceedings were discontinued with permission in due course, at about the same time as she was discontinuing other proceedings after Judge Tetlow’s judgment in February 1999.
31. Action 14 was an interlocutory application in the earlier county court proceedings to which I have referred. Action 15 was another interlocutory application in those proceedings. Actions 16 and 17 were Employment Tribunal proceedings brought against Mr Savage of the College of Law at Guildford, Miss Smith of the Law Society, the Law Society itself and the College of Law, which Mr Jay maintained were really a rerun of the earlier complaints.
32. We have the decision of the Employment Tribunal in connection with these applications where the history was set out at some length and the Tribunal finished in these terms:
“We considered the whole history of this case. We have taken into account the submissions of all parties, and reached the following conclusions. The applicant failed her exams twice. She was no doubt suffering a degree of hardship and difficulty in attending to her studies. She was given an exceptional opportunity by the Examination Board to re-sit the exams that she had failed. From October 1996 to date she has declined to avail herself of that opportunity; instead she has tried to persuade the College of Law to award her a pass, or alternatively carry out an individual personal assessment without the need to sit an examination; to this end she has pursued litigation in various forms before the Employment Tribunal and the County Court; in so doing she has resurrected a complaint about Mr Bell’s conduct in September 1995 which she did not pursue at the time. It is abundantly clear to us that she simply will not take ‘no’ for an answer and has therefore resorted to a multiplicity of applications to harass and bludgeon the respondents into submission.”
33. Then, after making other observations about the history, the Tribunal said:
“To allow this case to continue would put the respondents to further considerable expense. No particularised claim has been made against Mr Savage. We are satisfied that all the applications amount to unjust harassment of the respondents and a collateral attack on the decision of the Industrial Tribunal in May 1997 and HHJ Tetlow’s decision in February 1999. They are an abuse of the process and thus scandalous, frivolous and vexatious. We strike them out.
In these circumstances we did not consider which if any of the applicant’s complaints are barred by the doctrine of res judicata. Furthermore it is the respectful opinion of this Tribunal that the applicant is a vexatious litigant and the papers will be forwarded to the President of the Employment Tribunals for him to consider any further action.”
34. In the papers which Miss Douglas has lodged with the court there is a copy of the letter sent to her by Judge Prophet the President of the Employment Tribunals, dated 6th April 2000, in which he said:
“At this stage, I have decided not to take any further action in that respect, [referring to the comments of that Tribunal] but in the light of what has happened so far, if you were to deem it appropriate to make what appear to be further frivolous or vexatious applications in respect of matters already dealt with, then I would be obliged to reconsider.”
35. The Employment Appeal Tribunal refused permission to appeal from the Employment Tribunal in a judgment given by Judge Peter Clark. The appeal tribunal considered that the appeal raised no arguable point of law. Permission to appeal to the Court of Appeal was also refused. On this occasion it was Potter LJ who refused permission on 12th September. The applicant appeared in person before him, and after dismissing her application for permission to appeal he said:
“The applicant is apparently in grave danger of becoming the subject of an application to declare her a vexatious litigant; an application which she has informed me she will vigorously resist. I have left entirely out of account, as I told her I would, that particular knowledge or any considerations which may relate to it. I have made it clear that I have been concerned on this application with whether or not she has shown any arguable basis for success in an appeal if I give her permission to proceed. In that respect she has signally failed.”
36. Action 18 was an action against Mr Savage as Chief Executive of the Board of Management of the College of Law at Guildford. This was a complaint that the defendant had failed to invoke their Students’ Complaints and Staff Disciplinary Procedures. There was a submission by the defendants that there was no jurisdiction to hear those charges. This claim was discontinued in April 1999.
37. Action 19 was an application for permission to apply for judicial review lodged in this court, again against the College of Law at Chester and the Law Society of England and Wales, complaining of what was set out in letters Miss Douglas had received from those bodies on 23rd February and 23rd March 1999. The text of these applications and of the affidavit she made in support of them refers back to the old sad history. Collins J refused permission to apply for judicial review following a one-hour hearing in court which the applicant attended.
38. Action 20 was an action against Clifford Coppock & Carter in the Industrial Tribunal; this was an entirely different matter. The defendant was complaining of racial discrimination because of the way that firm, which was the firm she consulted in 1996 and 1997, had dealt with an application by her to become a trainee solicitor.
39. On 11th October 1999 the Employment Tribunal dismissed this claim after a full hearing. Mr Jay said that he was not suggesting that this was a vexatious complaint. Permission to appeal was refused successively by the Employment Appeal Tribunal and by the Court of Appeal.
40. Action 21 is simply an application for permission to appeal against Judge Tetlow’s order in February 1999. The Court of Appeal, as I have said, also refused permission to appeal and the costs were assessed against Miss Douglas in the sum of just under £8,500.
41. Action 22 was a new action against the Manchester City Council. Action 23 was an action against solicitors Clifford Coppock & Carter in relation to the trainee solicitor matter. It appears that each of these applications in the Manchester County Court were initially stayed by order of District Judge Jones following the introduction of the Civil Procedure Rules. They were listed for hearing in October. The court then considered whether to remove the stay or to dismiss the claim. On each occasion District Judge Jones struck the claim out as showing no reasonable cause of action. The claimant did not attend to show cause that either of those actions should not be struck out.
42. In December 1999 there were new proceedings in the Employment Tribunal against the Legal Education and Training section of the Law Society and certain of its officers. This, again, goes back to her continuing unhappiness about the way a different organ of the Law Society were treating her attempts to become a solicitor. The defendants put in what they called a rider submitting that the Law Society should be the sole respondent and making a number of preliminary objections to this application. On 22nd June 2000 this application was struck out.
43. The final application was an application made in the Employment Tribunal under the Disability Discrimination Act against the Law Society. This application was struck out on the same occasion as the last one.
44. After the institution of these proceedings further litigation was instituted. The first was an action brought against the Lord Chancellor’s Department on 8th May 2000 claiming damages for misfeasance and vicarious liability for a number of torts complaining about the way different judicial officers, Judge Tetlow, the Lord Justices in the Court of Appeal and the Chairman of the Employment Tribunal had dealt with the various matters that she had brought. Those proceedings were stayed generally pending the outcome of the present proceedings.
45. On 30th May 2000 she sought permission to appeal Judge Tetlow’s orders which she had already appealed, two orders made by judges in the Employment Appeal Tribunal and two orders made by the judges of the Court of Appeal. Those seem to have gone no further pending the outcome of the present proceedings.
46. On 10th July 2000 she lodged an appeal to the Employment Appeal Tribunal against the orders of an Employment Tribunal of 23rd June 2000 striking out actions 24 and 25. Mr Jay has also shown us a claim form, in this court, relating to statutory judicial review proceedings against the decision of the Solicitors’ Disciplinary Tribunal dated 7th August 2000.
47. The matter has been listed a number of times. I was sitting with Morison J in this court in January of this year when the matter was adjourned, for reasons which I need not describe. On that occasion this court made an interim order restraining Miss Douglas from taking further civil proceedings until the substantive hearing of this application.
48. As I said at the outset of this judgment, Miss Douglas came down to London to make submissions to us this morning. She was particularly anxious that the court should not make an order under section 42 of the Supreme Court Act against her because, in effect, she feared that that would be death to all her ambitions. In a letter that she sent to the court on 16th July 2001, after referring to certain conditions which the Treasury and the Attorney General were clearly unwilling to meet (which involved her repayment of the costs in the three cases which have been struck out), she said that she would agree to an undertaking to withdraw immediately and permanently all her current legal proceedings and not to institute future legal proceedings for a period not exceeding three years.
49. Miss Douglas told us not only about the bankruptcy proceedings, but about dealings which she had with the police who were reluctant to pursue a criminal charge for perjury against a solicitor in the firm of Clifford Coppock & Carter on the grounds that it could not be established that what was said was deliberately untrue. She said that she was making complaints to the Police Complaints Authority and she was also complaining about the Crown Prosecution Service in relation to its unwillingness to take the matter further. She also referred to her complaint to the Office of Supervision of Solicitors.
50. The language of section 42 of the Supreme Court Act 1981 is in these terms, so far as is material:
“(1) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground-
(a) instituted vexatious [civil] proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or
(b) made vexatious applications in any [civil] proceedings, whether in the High Court or any inferior court, and whether instituted by him or another...
the court may, after hearing that person or giving him an opportunity of being heard, [make a civil proceedings order...]
[(1A) In this section
“civil proceedings order” means an order that-
(a) no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made;
(b) any civil proceedings instituted by him in any court before the making of the order shall not be continued by him without the leave of the High Court; and
(c) no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court...]”
51. It is now well settled law that consideration of the question whether a person has habitually and persistently instigated vexatious legal proceedings does not depend on a minute examination of the question whether in each particular action there was a reasonable ground. The court must consider the number of actions brought, their general content and their results and must not review the merits of the underlying decisions. The standard of proof is the civil standard, heightened to take into account the seriousness of the issues at stake. The authorities for these propositions is to be found in Re Chaffers (1897) 45 WR 365 at 366; Re Vernazza  1 WLR 622 at 624; and Attorney General v Jones  1 WLR 859 at 863 and Attorney General v Hayward  The Times 20th November.
52. So far as proceedings in Employment Tribunals are concerned, the Employment Appeal Tribunal is empowered by section 33 of the Employment Tribunals Act 1996 to make a Restriction of Proceedings Order preventing the institution of Tribunal proceedings without permission. This procedure is appropriate when the sole litigious activity complained of has been before Employment Tribunals, but I would accept Mr Jay’s submission that the language of section 42 is wide enough to accommodate both court proceedings and proceedings in employment tribunals. These tribunals are to be regarded as “inferior courts” for the purposes of section 42 (see Attorney General v BBC  AC 303 at 339H and 360A; and Peach Grey & Co v Sommers  ICR 549, at 557H - 558A).
53. In Attorney General v Barker 16th February 2000, Crown Office transcript, Lord Bingham CJ said this of the word “vexatious” (see para 19):
“‘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.”
54. A little later he accepted a submission by counsel that the words “habitually and persistently” connoted an element of repetition which need not be over a long period.
55. The trouble in this case, in my judgment, lies with Miss Douglas’ unwillingness to refrain from pursuing her complaints against the Law Society and the educational instruments of that society at the College of Law. In my judgment the history that I have recorded, the applications, both to the County Court and to the Employment Tribunal, and the applications to this court for permission to apply for judicial review, have the hallmark and can properly now be described as coming within the statutory definition of section 42(1). I say nothing about the applications for permission to appeal to the Court of Appeal. This is now a without notice procedure and although she made these applications which took up a good deal of court time, I would not place so much weight on those, apart from expressing concern about the new set of applications which were triggered off in May of last year.
56. But what rings out from this history is that there was a period of her life in which she was psychologically very concerned and troubled about the way that her hopes of pursuing a professional career had been thwarted. There was a period of under two years between September 1998 and the time when these proceedings were instituted last year when she behaved in a way which can be properly stigmatised by the language used in section 42.
57. Judge Prophet gave her a warning in April 2000 in relation to Employment Tribunal proceedings; Potter LJ gave her a warning in September 2000 after these proceedings had already been instituted; and it is, of course, true that she has been the subject of an interim order made by this court since January of this year. But I am encouraged by the fact that she has taken these proceedings seriously; she has not sought to take a large number of technical points in connection with them. She has addressed the court politely and courteously and begged the court not to make an order under section 42. She has said that she was willing to give an appropriate undertaking for an appropriate period of time to desist from this activity.
58. Mr Jay, for the Attorney General, who has been of the greatest assistance to the court, made it clear that the Attorney would be unwilling, or perhaps I should say unhappy, that the matter should go off by way of an undertaking. He said that it would be very difficult to police and if we were satisfied that the statutory grounds were met, and if we were satisfied that it was appropriate to issue the kind of constraint involved in a civil proceedings order, then the course that we should adopt would be to make the order.
59. Of course, it is now well recognised that the order need not be an indefinite order. Mr Jay, and indeed the defendant, has drawn our attention to what this court did in a very different case of Attorney General V Barker. That was a case in which there was what the Lord Chief Justice described as “a flurry of litigious activity” over a three-month period and in that case the court was not satisfied that the conditions for making an order under section 42(1) were satisfied. Bingham LJ said, however, that if he was wrong in that conclusion, he would not in any event exercise his discretion to make an order against Mr Barker. He had told the court that he wanted to forget about the unhappy events of November 1997 to March 1998, and he offered his word to the court that he would not repeat his previous conduct. The Lord Chief Justice said that he would accept him as meaning what he said. Mr Barker was present in court when Lord Bingham said:
“We are accepting your word...But you will not let us down, will you?”
60. And he finished by saying:
“We did say in the judgment that if you did, the Attorney General would come back and he would be almost certain to obtain an order.”
61. I am satisfied that there has to be a stop to this litigious activity; it has gone on for too long. It has vexed the Law Society and the others who have been concerned with it. They are entitled to have a break from it.
62. A dilemma which faces the court is to know exactly what the appropriate course to take in the exercise of our discretion under section 42(1). For the reasons given by Mr Jay, which I accept, I do not consider that it is appropriate for this matter to go off by way of an undertaking, willing though Miss Douglas was to give one (although its precise terms were never formulated). I certainly do not consider that this would be a case in which it would be appropriate to make a civil proceedings order of any length. The question in my mind is whether it is best to make a civil proceedings order for a short period, to make no order at all, or to adjourn these proceedings for a period of 12 months in the hope that Miss Douglas will be willing to do what she was ready to undertake to do, which was to desist from proceedings.
63. With some hesitation I consider that the appropriate course to take would be to adjourn these proceedings for a period of 12 months. The purpose of this adjournment will be to see if Miss Douglas is willing to desist on her own initiative from any further applications or actions of the type in which she has taken part too often in the past. There will be liberty to apply, so that if at any time during this period of 12 months the Attorney General wishes to restore this application, he will be at liberty to do so. The matter will be adjourned for 12 months. At the end of the period the Attorney, given the history of the previous 12 months, can form a view as to whether there is any need to press for an order, or whether the matter can now be said to have been satisfactorily resolved, there having been, by then, quite a long period since the litigious activity between September 1998 and June 2000 will have come to an end.
64. I direct that a transcript of this judgment be made at public expense. It should be sent to Miss Douglas so that she can see what we have said.
65. In effect, when she came down to court this morning, having travelled all night by coach to be here, she was saying to the court, ‘give me a chance’. We are willing to give her a chance, and I hope that she will enter the spirit of the court’s willingness to give her a chance and desist from any further litigation. If she does not, then it seems to me almost inevitable that the order will have to be made against her under section 42 of the Act. I would, therefore, adjourn these proceedings for a period of 12 months. The matter should come back before a court of which I am a member if any further application has to be made in these proceedings.
MR JUSTICE NEWMAN: I agree, and I only wish to add some words because I desire to emphasise that it has been central to my concurrence with the course which has been proposed by my Lord that the defendant should be given the opportunity to implement the substance of that which she offered to the court as an unconditional undertaking. That means that she cannot repeat her conduct of resorting to litigation in connection with past grievances and must not resort to litigation as a means of expression of frustration against each and every negative response that she receives. She will undoubtedly suffer rebuffs and set backs in the pursuit of her career.
In my judgment it is undesirable and unnecessary for it to be secured by any form of undertaking. It is enough that she should know that unless she exercises restraint the Attorney General will come back and he would be almost certain to obtain an order.
MR JAY: I am obliged, your Lordship. It follows from your Lordship’s judgment that the section 37 Interim Injunction Order in January is now discharged.
LORD JUSTICE BROOKE: Yes, certainly.
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