Royal Courts of Justice


London WC2

Tuesday 14 November 2000

B e f o r e:




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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 S KOVATS (instructed by THE TREASURY SOLICITOR, LONDON SW1 H9JS) appeared on behalf of the Claimants.

MR J PICKERING (instructed by TI CLOUGH & CO, BRADFORD, WEST YORKSHIRE, BDI 2TD) appeared on behalf of the Defendants.

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(As Approved by the Court)

Crown Copyright

1. LORD JUSTICE ROSE: Her Majesty’s Attorney General seeks a civil proceedings order restricting the defendant in relation to what are said hitherto to have been vexatious legal proceedings. The application is made under section 42 of the Supreme Court Act of 1981 which provides that if the court is satisfied:

"...that any person has habitually and persistently and without any reasonable ground-

(a) instituted vexatious civil proceedings...


(b) made vexatious applications in any civil proceedings...,"

2. the court may make a civil proceedings order. Such an order cannot be made without the defendant having had the opportunity of being heard. Today this defendant has had the advantage of being represented by Mr James Pickering of counsel.

3. Before turning to the law and the rival submissions which have been made in relation to it, it is first convenient to identify the factual basis on which the Attorney makes this application. There is exhibited to an affidavit by Mr Lutterodt on behalf of the Attorney General, a schedule of 34 actions, although there is a duplication between two of those, so that 33 actions are referred to.

4. The first in March 1992 was an action claiming £25,000 for nuisance against a Mr George Psarious; that action was struck out by the county court judge in May 1994. The second in April 1993 was an application for an injunction against the occupiers of a property, which was a neighbouring property to that of the defendant, seeking to restrain the defendants from damaging Dr Matthew’s property. That action was dismissed by the county court judge some two-and-a-half weeks after it had been instituted and Dr Matthews was ordered to pay the defendant’s costs.

5. In May 1995 Dr Matthews sought damages against the Lord Chancellor’s Department for denying access to the courts; that action was struck out in July 1995 by the county court judge. On the same day as the previous action Dr Matthews started action number 4, claiming damages for faulty photographic processing against Boots the chemists; that action was successful to the extent that a modest payment into court was made, which Dr Matthews accepted.

6. Action number 5 was started in June 1995 against a gentleman making a claim for injury by a cow during an auction; that action was successful in that a district judge ordered that the defendant pay a sum in excess of £2,000 to Dr Matthews’ costs. Dr Matthews appealed unsuccessfully in relation to damages.

7. Action number 6 in June 1995 was against the Leeds Council Planning Department claiming damages for incompetence in relation to the handling of a dispute between neighbours; that was struck out by the district judge and Dr Matthews was ordered to pay the defendant’s costs. He appealed against that order, unsuccessfully.

8. Action number 7 in August 1995 was against a gentleman who, it was said, had colluded with a circuit judge in December of 1992 leading to Dr Matthews’ imprisonment for some three weeks. That action was struck out by the district judge and Dr Matthews was ordered to pay the defendant’s costs.

9. In 14th August 1995 Dr Matthews instituted two separate proceedings. The first, action number 8, was a claim for damage to property against a limited company; it was struck out by the district judge as an abuse of the process of the court. The other action on that date was against a gentleman for fracturing the plaintiff’s hip; that action was dismissed by a circuit judge and Dr Matthews was ordered to pay the defendant’s costs.

10. Action number 10 was against British Telecom. Damages were claimed for incorrect charges for telephone calls and the focus of Dr Matthew’s claim was an alleged overcharge of £3.65; that action was dismissed by a district judge and Dr Matthews was ordered to pay the defendant’s costs. Undeterred, he appealed against that order. That appeal was unsuccessful.

11. Action number 11 in July 1996 was a claim for faulty repair to Dr Matthews’ car. The district judge ordered that no award should be made and that Dr Matthews should pay the defendant’s witness expenses. An application by Dr Matthews for leave to appeal was dismissed by a circuit judge.

12. Action number 12 was a claim for damages for assault and damage to property against Bradford Traveller. It was dismissed by the district judge; on appeal to the circuit judge the appeal was dismissed. There was a further application by Dr Matthews to set aside the circuit judge’s order and that application, likewise, was dismissed.

13. Action number 13 in October 1996 was against insurance brokers for alleged breach of contract and disorganisation in handling the plaintiff’s insurance requirements; that action was struck out by a district judge.

14. Action number 14 in January 1997 was a claim against the local health authority for damages for negligent treatment by the medical staff, in particular, awakening Dr Matthews too brusquely. That action was struck out by the district judge as disclosing no reasonable cause of action.

15. Action number 15 in May 1997 was a claim for damages against the Department of Planning for permitting Dr Matthews’ neighbours to build a wall and destroy his fence; that was struck out by a circuit judge and Dr Matthews was ordered to pay the defendant’s costs.

16. Action number 16 in May 1997 was a claim against Texaco Ltd for the failure to warn the public of a biological disaster. A district judge struck it out as vexatious, frivolous and disclosing no cause of action, and ordered the plaintiff to pay the defendant’s costs. Dr Matthews appealed to the circuit judge; that appeal was dismissed and he was, again, ordered to pay the defendant’s costs.

17. In July 1997 Dr Matthews brought action number 17 for damages for common assault, perjury and malfeasance against a Mr Monaghan; that claim was struck out by the district judge. There was an appeal to a recorder; that was unsuccessful and Dr Matthews was ordered to pay the defendant’s costs.

18. Action number 18, in September 1997, sought damages for the mishandling of Dr Matthews’ holiday by travel agents; that action was struck out by the district judge as disclosing no cause of action and as being scandalous, frivolous, vexatious and an abuse of the process of the court. Thereafter, that order was set aside in order to enable Dr Matthews to file an affidavit in relation to those matters but, finally, it was again struck out and an appeal against that strike out by Dr Matthews was dismissed by a recorder.

19. Action number 19 in October 1997 was against the Law Society claiming damages for denial of access to appropriate legal education, in breach of the European Convention on Human Rights; that action was struck out by a district judge as disclosing no reasonable cause of action and as being frivolous and vexatious. Further applications were made by Dr Matthews to a district judge which culminated in Dr Matthews being debarred from making any further interlocutory applications to a district judge; against that order, again, Dr Matthews unsuccessfully appealed.

20. Action number 20 in May 1998 was brought against stationers seeking damages for no less than false imprisonment and wasting Dr Matthews’ time. Some slight flavour of his litigation can be gained from that about which he was complaining on that occasion, namely that, although the employees of the defendant’s stationary company had proffered to him some assistance in booklet form, Dr Matthews took the view that his time was being wasted because the assistance was not of the quality which he required. Dr Matthews in that action was debarred from giving or calling evidence and a judgment was given by the circuit judge in the defendant’s favour.

21. Action number 21, in May 1999, was a claim for damages for allegedly intending to seek permission to destroy a 19th Century farmhouse; that was struck out by a district judge as disclosing no cause of action and Dr Matthews’ appeal against that order was dismissed.

22. Action number 22 was against Sandra and Richard Skelton claiming damages for selling Dr Matthews’ home, which was the subject of a charge. The claims against the two defendants were separately dismissed; that against the former by a district judge and that against the latter by a circuit judge. On appeal by Dr Matthews that appeal was dismissed by an assistant recorder.

23. Action number 23 in August 1998 was against a cruise line claiming compensation for a spoiled cruise; that action was struck out as being vexatious and showing no cause of action by a district judge. Again, Dr Matthews appealed to the circuit judge. His appeal was unsuccessful; costs were awarded against him.

24. Action 24, in January 1999, sought damages for overcharging, harassment and maladministration against the local water authority; that was struck out by a district judge on the ground that it failed to disclose any reasonable cause of action.

25. Action 25 was an action against a bank for negligence in mismanagement of Dr Matthews’ accounts. An order was made by the district judge to file amended particulars of claim; that order was not satisfactorily complied with and the action was subsequently struck out.

26. Action 26 was instituted in May 1999 and sought damages against a limited company for what was said to be degrading assault, wrongful imprisonment, arrest and a malicious prosecution. The action was stayed by a district judge until Dr Matthews had complied with the personal injury protocol and filed an appropriately amended form. As he failed to do so, that action was struck out.

27. Action 27 was instituted in May 1998 against the West Yorkshire Police claiming damages for wrongful arrest and imprisonment; that action failed before the circuit judge and costs were awarded in favour of the defendants. Action 28 was the same as action 19 to which I have already referred.

28. Action 29 was brought against the Leeds Metropolitan University Authorities claiming denial of a legal right to study law at that university; that action was struck out by the district judge and leave to appeal was refused.

29. Action 30, in February 1998, sought damages for theft of land and damage to property against a Mr and Mrs Hague. That action resulted in a dismissal and the fixing of a date for hearing which was subsequently vacated; no very clear conclusion has resulted in that litigation.

30. Action 31 was started in March 1998 against Halifax PLC claiming damages for a failure to issue shares to Dr Matthews; that claim was dismissed by the district judge who ordered Dr Matthews to pay the defendant’s costs.

31. Action 32 was brought against travel agents claiming damages for overcharging in relation to fares. In this action £700 in damages was awarded to Dr Matthews which he did not regard as sufficient. He appealed, unsuccessfully, in relation to quantum and leave to appeal further was refused.

32. Action 33 was started in October 1998 claiming damages for fraud against British Telecom; that claim was struck out by the district judge and a further application in relation to the claim by Dr Matthews was dismissed.

33. Action 34 was instituted in October 1998. It was a claim for damages against the Department of Social Security for refusal to deal with Dr Matthews’ claim for income support; that action was struck out by a district judge. A further application by Dr Matthews was struck out and a subsequent further application was dismissed with costs awarded in favour of the defendants to that claim.

34. The way in which Mr Kovats, on behalf of the Attorney General, summarises those proceedings is this, and in this regard he refers to the affidavit of Mr Lutterodt on the Attorney General’s behalf:

“Of the 33 actions...25 have been struck out or summarily dismissed...[four] failed on their merits. In [one there has been acceptance of a] payment into court.”

35. In another he successfully obtained judgment, but unsuccessfully appealled in relation to quantum, and in another liability was accepted before proceedings were begun. 26 of the actions, it is submitted, were vexatious and there was at least one vexatious appeal on quantum. Grepe v Loam orders, that is to say Grepe v Loam [1887] 37 ChD 168, were made preventing Dr Matthews from making any further applications without leave in three of the actions, numbers 18, 19 and 34. In number 18 a further vexatious application for a jury trial in a negligence action was made after a Grepe v Loam order had been made. In actions 8 and 29 indemnity costs were awarded against Dr Matthews. At all material times Dr Matthews appears to have been on income support and therefore exempt from court fees. So there has been no realistic prospect of those whom Dr Matthews sued unsuccessfully recovering costs against him, notwithstanding that orders in relation to costs were made in their favour.

36. It is common ground, so far as the law is concerned, that the starting point in this matter is the judgment of Parker LCJ in re Vernazza [1959] 1 WLR 622. At page 624 Lord Parker said this:

"In considering whether any proceedings are vexatious one is entitled to, and must look at, the whole history of the matter, and it is not determined by whether the pleading discloses a cause of action...Though the pleading may be in order, the court, in its inherent jurisdiction, is entitled to look at affidavits as to the history of the matter, and if, in the light of that history the action is vexatious, the pleading can be struck out and the claim dismissed."

37. When that matter went to the Court of Appeal, and it is reported in [1960] 1 QB 197, Ormerod LJ at page 208 said this with reference to legal proceedings:

"...the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious. I suppose most proceedings are vexatious to the persons against whom they are directed, and, therefore, the further question has to be considered whether, though they may be vexatious, they have been brought without any reasonable ground. That is a matter for the court to decide. But if, in the opinion of the court, the proceedings are vexatious and there is no reasonable ground for bringing them, then they are within the category at which this section aims."

38. Both Mr Kovats, on behalf of the Attorney General, and Mr Pickering invited the court’s attention to Her Majesty’s Attorney General v Price [1997] COD 250 where consideration was given to the impact, if any, of article 6(1) of the European Convention on Human Rights in relation to applications for orders under section 42. At page 252 of the report it appears that the court in that case rejected the submission based on article 6 as being misconceived.

"That Article did not create an absolute right of access to a court, come what may."

39. The guiding principles had recently been restated by the European Court of Human Rights in Tolstoy Miloslavsky v UK (1995) 20 EHRR 442:

"The court reiterates that the right of access secured by Article 6(1) may be subject to limitation in the form of regulation by the State. In this respect the State enjoys a certain margin of appreciation. However, the court must be satisfied, firstly, that the limitations applied do not restrict or reduce the access left to the individual in such a way, or to such an extent, that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."

40. The Divisional Court went on in Attorney General v Price to say that on two occasions the European Commission of Human Rights had concluded that the national proceedings for handling vexatious litigants conformed with the obligations imposed by the Convention, and reference was made to Golder v United Kingdom.

41. Mr Kovats also took us to the work of Lord Lester and Mr David Pannick QC, "Human Rights Law and Practice" where, as in due course Mr Pickering reminded us, there appears this passage at paragraph 4.6.18:

"The right of access is not absolute but may be subject to limitations, since the right ‘by its very nature calls for regulation by the state, regulation which may vary in time and place according to the needs and resources of the community and of individuals’. States enjoy a certain margin of appreciation in laying down such regulation. Nonetheless, the limitations applied to the right of access to court must not be such that the very essence of the right is impaired; there must, moreover, pursue a legitimate aim and comply with the principle of proportionality; and should be legally certain."

42. And at paragraph 4.6.19 appears the following:

"Restrictions on the right of access to a court have also been allowed in relation to: vexatious litigants."

43. Reference is there made to H v United Kingdom 45 DR 281 a decision of the European Commission to which Mr Pickering took us. It is apparent from page 285 of the Commission’s decision that, giving consideration there to the vexatious litigant provisions in Scottish Law, the Commission concluded that these did not limit the applicant’s access to court completely but provided for review by a senior judge, the provisions were not disproportionate and the applicant’s claim in that case was manifestly ill-founded.

44. The submission which is made by Mr Kovats in the light of these facts and principles is that, first, Dr Matthews, by paragraph 60 of his affidavit in relation to this application, has manifested a determination to continue as before: he says that his litigation history shows up "my technical inadequacies as a lawyer which I would like to put right if I was allowed to train properly". He also goes on to express concern in relation to the interests of the public, as to public safety and consumer issues, which, he suggests, should not lead to his being classified as a vexatious litigant.

45. Mr Kovats submits that the history of the actions to which I have referred demonstrates that, so far as Dr Matthews is concerned, trivial everyday controversies have hardened into legal proceedings, taking up the time of the courts and defendants in a manner which is wholly inappropriate and which demonstrably gives rise to the need for the kind of order which the Attorney General seeks.

46. On the contrary, submits Mr Pickering, the application made should fail, first because the evidence before the court is insufficient to justify the making of a civil proceedings order and, secondly, although this submission is intertwined with the first, an order would ignore, inappropriately, the provisions of article 6 of the European Convention and hence the Human Rights Act 1998. Mr Pickering’s submission is that the two key requirements for making an order against the defendant are, first, that the litigation must have been vexatious and instituted without any reasonable ground, and secondly that the proceedings must have been instituted habitually and persistently.

47. As to the first of those requirements, Mr Pickering draws attention to the fact that actions 4, 5 and 32 were successful but that actions 1, 2, 9, 10, 11, 12, failed at trial. He submits that actions 14, 20, 25, 26, 27 and 31 were struck out because of a failure to comply with the courts’ directions, which does not necessarily mean that the claims were brought in the absence of reasonable grounds. Claims 17, 22 and 33 were struck out as being a duplication of previous proceedings and this was the result of Dr Matthew’s inadequate legal understanding.

48. It is accepted by Mr Pickering that claims 3, 6, 7, 8, 13, 15, 16, 18, 19, 21, 23, 24, and 29, that is to say a total of 13 of these claims, were struck out for failing to disclose a cause of action. But, submits Mr Pickering, there was an underlying complaint which was genuine, but it was inadequately presented in the pleadings with the consequence to which I have referred. Claim 30 is still pending and so cannot be said to have been brought without reasonable grounds, and claim 34 was struck out due to nonattendance at a hearing by the defendant; it does not necessarily follow that it had been instituted in the absence of reasonable grounds.

49. As to the second requirement for the habitual and persistent institution of proceedings, Mr Pickering submits that an element of repetition is required. He refers to the circumstances of Vernazza which demonstrate that the claims, repeated over a period of 24 years, were all against the same defendant company. He draws attention to the fact that in HM Attorney General v Price the numerous claims all arose from the same subject matter, namely a distributorship agreement. In HM Attorney General v Scriven [2000] Lawtel, 4th February 2000, the many actions issued by the defendant arose from the same subject matter, a divorce petition and the conspiracy which was alleged to have emanated therefrom. In HM Attorney General v Oakes (2000) Lawtel, 16th February 2000, the defendant had issued numerous actions arising from his bankruptcy, that is to say the litigation again arose from the same subject matter.

50. By contrast with those authorities, Mr Pickering draws attention to HM Attorney General v Barker (2000) Lawtel, 16th February 2000, and the transcript of the Divisional Courts’ decision on 7th March 2000 which is before the court. In that case the application made by the Attorney General failed. The application related to litigation with regard to the defendant’s children. There was a short burst of activity by the defendant over a period of a few months when it appears that he had been suffering from some mental breakdown. It was a case in which it appeared unlikely that the defendant would embark on further litigation and, indeed, he promised not to do so and had, by the time of the hearing, been restored to health.

51. In the course of giving the leading judgment in that case Lord Bingham of Cornhill, Chief Justice, in passages on which Mr Pickering specifically relies said this at paragraph 22 of the transcript of his judgment:

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

23. [Counsel for the Attorney] acknowledges that words “habitually and persistently” connote an element of repetition, but says that that repetition need not be over a long period. I would accept that qualification, but there must nevertheless be that element of repetition and in my judgment it is not shown here."

52. The submission which Mr Pickering makes in reliance on those observations, by the then Lord Chief Justice, are that in the present case the element of repetition is not sufficiently shown. It is accepted that three of the 33 claims were effectively repetitions of previous claims, but there had, in each of those cases, been only one repetition and not more, and there is no indication in the history of the defendant’s litigation of him wishing to continue with claims against particular defendants once they had failed.

53. Mr Pickering concedes that there is, in the defendant’s litigation, what he calls "minimal repetition", but there is not, he submits, that characteristic of repeated litigation against the same defendant, or repeated litigation in relation to the same subject matter, which has, in the authorities to which he invited our attention, led to the making of an order of this kind: that is plainly so. The question is whether it is a necessary prerequisite for the making of an order under section 42 that the repetitious behaviour of which complaint is made has necessarily either to be directed against the same defendant or to arise from the same subject matter.

54. In my judgment, that is not the position. Granted that repetitious conduct is a necessary prerequisite for the making of an order, what gives rise to that repetitiveness necessarily depends, it seems to me, on the circumstances of the particular case. In making the determination whether or not there is that necessary element of repetition one looks at the whole history of the defendant’s litigious activity. In some cases that activity will focus upon a particular defendant. In some cases it will focus upon a particular grievance. In some cases it may be represented by numerous claims against a wide range of defendants in circumstances where no reasonable cause of action exists. In this last category of case, as it seems to me, the conditions of section 42 may be fulfilled just as they may be if a particular defendant or a particular grievance is the focus of the defendant’s activity. As the passages in the judgment in Vernnazza, to which I earlier referred, make plain, one has to look at the whole of the circumstances, the way in which the proceedings were instituted, whether with or without reasonable cause, and also the way in which, subsequently, they were conducted by way of hopeless appeal or otherwise. All of those matters have to be considered.

55. So far as Mr Pickering’s final submission is concerned, by reference to the Human Rights Act, he does not suggest that section 42 is incompatible with article 6(1), but he submits that it must be considered in the light of article 6. That proposition, for my part, I have no difficulty in accepting.

56. Mr Pickering accepts that Dr Matthews has demonstrated speed off the mark in relation to litigating complaints, but that, in itself, should not give rise to an order under section 42. That proposition also, for my part, I have no difficulty in accepting.

57. But, for the reasons which I have given, the pattern of behaviour of this defendant, as it seems to me, does give rise to the need for a civil proceedings order under section 42 of the act. There is, as it seems to me, in the Strasbourg jurisprudence to which I have referred, as well as in the English jurisprudence, in the form of HM Attorney General v Price considering the Strasbourg jurisprudence, no inhibition, so far as the circumstances of the present case are concerned to the making of such an order.

58. For my part, I am satisfied that Dr Matthews has habitually, persistently and without any reasonable ground instituted vexatious civil proceedings and made vexatious applications in civil proceedings. I am satisfied that the court, in the exercise of its discretion, should make the order which the Attorney General seeks.

59. MR JUSTICE MOSES: I agree.

60. MR KOVATS: My Lords, my instructing solicitors kindly produced draft orders, if I can hand them up so your Lordships can have a glance at them and then if they can be given to the associate and sealed.

61. LORD JUSTICE ROSE: Thank you. Has Mr Pickering seen these?

62. MR KOVATS: Only just at the moment; he is just reading it now.

63. LORD JUSTICE ROSE: What is the difference?

64. MR KOVATS: They are the same. Sorry, I have handed up an excessive number of copies.

65. LORD JUSTICE ROSE: I see. We all have two copies. Mr Pickering, have you any observations on those?

66. MR PICKERING: My Lord, only in terms of duration; it is unlimited. I will keep my submissions brief. I would ask this that the order be of limited duration.

67. LORD JUSTICE ROSE: Thank you. We shall make it of unlimited duration.

68. MR KOVATS: Thank you.

69. LORD JUSTICE ROSE: Thank you very much.

70. MR PICKERING: My Lord--


72. MR PICKERING: Finally, before I ask for Dr Matthews’ position I would formally ask for permission to appeal.

73. LORD JUSTICE ROSE: And we formally refuse it. Thank you.

74. MR PICKERING: My Lord, thank you.

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