IN THE HIGH COURT OF JUSTICE CO/2168/90

Royal Courts of Justice

The Strand

London

Monday 24 May 1999

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Bingham of Cornhill)

and

MR JUSTICE OGNALL

B E T W E E N:

THOMAS MATHEW Applicant

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HER MAJESTY’S ATTORNEY GENERAL Respondent

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Smith Bernal, 180 Fleet Street, London EC4

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THE APPLICANT appeared in person

THE RESPONDENT was unrepresented

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J U D G M E N T

(As Approved by the Court)

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THE LORD CHIEF JUSTICE: I will ask Mr Justice Ognall to give the first judgment.

MR JUSTICE OGNALL: On 2 February 1991 a Divisional Court declared the applicant before us, Mr Thomas Mathew, a vexatious litigant, pursuant to the provisions of section 42 of the Supreme Court Act 1981. That order prevented him thereafter from bringing any proceedings of whatever character without the leave of the court. On 27 February 1992 the Court of Appeal dismissed his appeal against that order. He now asks this court to set aside that order.

Before I deal with the grounds advanced in support of his application, it is necessary shortly to recite the history of the matter leading to the order of February 1991.

The applicant’s late brother, Theobald Mathew, died in France in July 1983. He left substantial estate, and appointed the applicant and a solicitor as his co-executors. Regrettably, it seems that the applicant and the solicitor came into conflict which ultimately made it plain that the administration of the estate was, from a practical point of view, impossible. Indeed, it was described by the Vice- Chancellor at one stage as “disastrous”.

In consequence, and in June 1986, a Judicial Trustee was appointed by the court in place of the executors. Thereafter, the applicant had no lawful part to play on behalf of the administration of the estate. Unfortunately, and notwithstanding that embargo, he continued without authority so to do, to bring numerous civil actions against his brothers, against solicitors, and against others involved in the administration of the estate. He made numerous allegations of maladministration, particularly concerning the sale of Theobald Mathew’s farm, Lower Lodge Farm, which was the estate’s principal asset. From a reading of the papers it appears that no less than eleven judges of the Chancery Division of the High Court at one stage or another ruled on his litigation.

It was that plethora of civil process which led to the successful application on behalf of the Attorney General to the court to have the applicant declared a vexatious litigant. The court on that occasion described the grounds for making the order as “overwhelming”.

The final distribution of the estate was made on 11 March 1996.

The applicant now seeks to challenge the final accounts prepared for the purposes of the distribution on the basis of what is described as “fresh evidence”. Although in part described as a challenge to the validity of the final accounts, for my part I am satisfied that the real thrust of the applicant’s present case is that the evidence to which he now refers serves to demonstrate that at least some of the litigation which he initiated, and which led to the declaration of February 1991, is now demonstrated to have been soundly and meritoriously based on the facts and on the relevant law applicable to the issue in those proceedings. Accordingly, and for that reason, he now seeks to persuade the court that the order declaring him a vexatious litigant was made against the justice of the case.

For my part, and I hope without sounding in any way patronising, for that is not my intention, I would wish to echo what was said at the time Mr Mathew was declared a vexatious litigant:

I hope in those circumstances, and notwithstanding the considerable amount of paper before us, that the applicant will forgive me if I seek to summarise what I understand to be the principal heads of his application today by identifying what I understand to be the essential effect of what he describes as the “fresh evidence”. I do so under seven numbered headings.

First, he contends there were procedural irregularities of a substantial character concerning the return to England from France of his brother’s body, and its subsequent burial in Northamptonshire. Second, that solicitors instructed on behalf of the estate permitted its administration without taking all proper and necessary steps to satisfy themselves prior to that conduct of the death of the deceased.

Third, that solicitors acted negligently in not protecting the interests of those entitled in priority under the late Theobald Mathew’s will to the residuary legatees.

Fourth, that whether before or after the appointment of the Judicial Trustee, the estate was unlawfully depleted by certain improper payments.

Fifth, that the Trustee has paid solicitors’ fees in certainly three cases, totalling some £42,000, without obtaining taxation certificates in respect of those bills, contrary to his duty. Sixth, that in four cases subsequent to February 1991, where the court has permitted the applicant to commence or to continue certain litigation in this matter, the judges in question have expressed criticisms of some aspects of the way in which the estate was administered.

Seventh, it is complained that in September 1997 the Judicial Trustee wrongly asserted to applicant that effectively he no longer had any function in, or status with regard to, the administration of the estate.

I believe and hope that that summary does not violate the essential aspects of what the applicant contends affords sound grounds for setting aside his present status as a vexatious litigant. It is also right to acknowledge that the applicant himself has conceded that on numerous occasions prior to the order of February 1991 his litigiousness was misconceived. He has sought to explain that repeated litigation by certain pressing domestic circumstances which unsettled him, particularly in the years 1987 to 1989.

After careful consideration of this matter, for my part I am quite satisfied that its essential basis is equally misconceived and that it should be refused. I have had the advantage, amongst the many papers, of reading the written skeleton argument put before the Court of Appeal in 1992, when the applicant sought to set aside the order made by the Divisional Court in the previous year. It was therein argued on behalf of the Attorney General that the grounds then being advanced to the Court of Appeal by the applicant on that occasion were no more than an attempt to argue that at least some of the orders made in the underlying litigation were wrongly made by the courts in question.

The essential features of the further material now put before us are in reality, in my estimation, directed to challenge the conduct of those concerned with the administration of the late Theobald Mathew’s estate rather than the appropriateness of the section 42 Order. Some of the detail, I acknowledge, is said to be new (and more of that in a moment) but the underlying thesis is identical to that which was canvassed before the Court of Appeal in 1992.

It was precisely that form of challenge which failed before the Divisional Court in 1991. I am satisfied that there is clear and binding authority of the House of Lords for the conclusion that the multiplicity of the proceedings underlying the application for the section 42 Order, whatever their individual merits, afforded a legitimate basis for the conclusion that the applicant be properly characterised as a vexatious litigant. Insofar as there is, and has been for some time, a challenge to the propriety or legitimacy of those many orders in the underlying proceedings, that challenge can only be mounted in those underlying proceedings, and not on the hearing of a section 42 application: see Attorney General v Jones (HL) [1990] 1 WLR 1089.

Moreover, it is, upon authority, unnecessary for the court to conclude that all the proceedings forming the subject of the section 42 application were vexatious. The court, on considering the merits of an application of that kind, is entitled to take a broad view and ask itself whether the litigation as a whole indicates the persistent initiation of proceedings without reasonable grounds.

Having considered the material now advanced by the applicant, for my part I am satisfied that to a substantial extent it neither more nor less is to be characterised as an attempt, yet again, to re- ventilate the merits of litigation long concluded, and which led to him being declared a vexatious litigant. But, quite apart from that aspect of the matter I would conclude that it is in any event not open to this court to set aside the order made by the Divisional Court and upheld by the Court of Appeal in 1992. Insofar as it may be established that any of the applicant’s present grounds do indeed raise new material not hitherto ventilated in the applicant’s earlier litigation, the proper and only vehicle for so doing, as one who is presently a vexatious litigant, is for Mr Mathew to seek leave on a case by case basis to commence proceedings.

I would wish to echo the court’s sentiments at the time when Mr Mathew was declared a vexatious litigant. There can be no doubt that his sense of the justice of his cause is indeed overwhelming. Nonetheless, for the reasons I have given, I regard the present application as fundamentally flawed. This court has no jurisdiction to entertain it. I would accordingly for my part reject it.

THE LORD CHIEF JUSTICE: I agree. Like my Lord, and like previous judges who have ruled in this matter, I do not doubt Mr Mathew’s total belief in the justice of his cause, nor his sense of grievance at the course which events have taken. That makes his moderate and courteous presentation of his case all the more admirable.

We, however, face a notice of motion in which Mr Mathew asks us to quash and set aside the order made by this court on 15 February 1991. That order was the subject of an appeal to the Court of Appeal which dismissed the appeal. I cannot for my part see any procedural basis upon which this court could properly grant the relief now sought, particularly bearing in mind that Mr Mathew does not, as I understand, challenge the good faith of the Attorney General in obtaining the order. If there were power to grant the relief sought, I am by no means satisfied that we should in any event grant it. If Mr Mathew has any arguable complaint about the affairs of his late brother and his estate, he has the right to seek leave under section 42(3) on a case by case basis. This is something of which Mr Mathew is very well aware, since he has made use of his right under that section on more than one occasion. That right remains open to him, although I would not wish to be understood as encouraging him to make further applications. That is a matter for him and the judge to whom any application is made and, as I say, I would not wish to be thought to be encouraging him.

I am, however, satisfied that this court has no choice but to refuse this application.

THE APPLICANT: I am obliged to your Lordships. My Lords, I wonder if I may ask -- if I asked you today to grant me leave to appeal to the Court of Appeal, and your Lordships were to grant me the leave to allow the matter to go back to the Court of Appeal, would the Court of Appeal in this complexity of argument have the jurisdiction to set aside their own order of 26 February 1992, if I was able to satisfy them that in fact it should be quashed?

THE LORD CHIEF JUSTICE: You are a very beguiling tempter, Mr Mathew, but I think it would be very dangerous for us to express any opinion on what the Court of Appeal could do if you made any application to them.

THE APPLICANT: Indeed. Could I ask your Lordships to grant me leave so that, if I wish, I could apply to see if it was possible for the Court of Appeal to deal with the matter since your Lordships are unable to deal with it today?

THE LORD CHIEF JUSTICE: We shall not grant you leave, Mr Mathew, but that --

THE APPLICANT: That means I would have to apply for leave in the Court of Appeal?

THE LORD CHIEF JUSTICE: Yes. You would need to try and persuade the Court of Appeal that there was an arguable ground for suggesting that our conclusion today is wrong.

THE APPLICANT: I am very much obliged to you, my Lord.

THE LORD CHIEF JUSTICE: Thank you.