Royal Courts of Justice


London WC2

19th March 1997

B e f o r e:




- - - - - - -






- - - - - -

(Transcript of a handed-down judgment by

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-831 3183/0171-404 1400

Fax No: 0171-404 1424

Official Shorthand Writers to the Court)

- - - - - -

MR ROBERT JAY (instructed by Treasury Solicitor, London SW1) appeared on behalf of the Applicant.

MR MARK GORDON (instructed by Colin Green & Co, Talbot Green, CF7 8AD) appeared on behalf of the Respondent.


( As Approved)


LORD JUSTICE BROOKE: This is the judgment of the Court.

There is before the Court an application made by the Attorney-General for a civil proceedings order against Mr Richard Thomas Clive Price under Section 42 of the Supreme Court Act 1981 as amended. The grounds on which this application is based are that Mr Price has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings and made vexatious applications in civil proceedings.

The case for the Attorney-General, in short, is that the documents he has placed before the Court show that Mr Price has brought numerous vexatious actions and made numerous vexations applications since at least 1990; that his proceedings have very often been struck out; and that the normal rules as to costs in civil proceedings have proved to be, and are likely to be, ineffective in deterring him from continuing to bring vexatious actions and applications. This is because he has indicated that he had neither the intention nor the ability to pay costs, and Connell J in a judgment dated 28th July 1995 noted that he had no assets. Finally, it is said that the interests of others and the public interest generally require that Mr Price should no longer be able to take proceedings or make applications in proceedings without the leave of the Court.

The history of the stormy relationship between Mr Price and the Novell companies runs along the following lines. Mr Price is now 53. After attending school and obtaining higher qualifications in this country he went to live in New Zealand when he was 22. He had an interest in computers, and when he returned to this country in the 1970s he eventually specialised in computers and joined a company called Modata Computers Limited ("Madata") in 1983. Modata enjoyed the benefit of an informal distributorship agreement for products manufactured by Novell Inc ("Inc"). Inc is a company incorporated in Utah in the United States of America. It is engaged in the manufacture and distribution of computer hardware and software systems.

In 1984 Mr Price bought the part of Modatas business which comprised the distributorship of the Novell product: this purchase included the benefit of the Novell distributorship. He also acquired from Modata and others the whole of the issued share capital of Novell Data Systems Limited ("NDS"), a company which had been formed or acquired by Modata in 1983 but had never traded. NDS became the vehicle through which the Novell distributorship was thereafter conducted. In October 1984 Inc entered into an agreement with NDS under which NDS was formally granted an exclusive right to market and sell Novell products in the United Kingdom.

At all material times Mr Price was a director and a holder of all but one of the issued shares in NDS. In 1986 his companys contractual relationship with Inc changed: by a further agreement made on 1st May of that year the October 1984 agreement was altered so that the exclusive distributorship was converted into a non-exclusive distributorship. An English subsidiary of Inc, Novell (UK) Ltd ("UK") started to trade and to distribute some of Incs products in the United Kingdom in July 1986.

In the first action, started against Inc and UK by writ issued in the Queens Bench Division on 12th October 1987, NDS claimed, among other things, that the variation agreement of 1st May 1986 had been obtained as a result of intimidation or economic duress and that that agreement was void and of no effect. NDS also sought a declaration and injunctive relief based on the contention that UK had no right to trade in the United Kingdom under that name, damages for breach of the October 1984 agreement and damages for passing off. The action was transferred to the Chancery Division, where in January 1988 NDS gave notice of motion to restrain alleged passing off. This prompted counter-claims by the Defendants, and when these motions came before Harman J in May 1988 they were all dismissed. As to the Plaintiffs case, he said that it seemed to him that it must fail at trial on the basis that there was no possible justification on the present evidence that there could be shown exclusivity in NDS for the name "Novell" in the understanding of the relevant set of people within England and Wales.

On 10th June 1988 NDS, which had suffered from financial problems since the start of that year, was placed in voluntary liquidation. A creditors meeting was convened on 23rd June 1988. The final paragraph of the report to creditors which was presented at that meeting was in the following terms:

"The history of the Company's dealings with Novell Inc have formed a large part of the trading history and further pursuit of the action against Novell Inc will inevitably need investigating by the liquidator and a liquidation committee".

Following an overture a week later by Inc and UKs solicitors, the liquidator in due course settled these proceedings on terms that Inc would pay NDS 100,000 for loss of commission and 25,000 for any goodwill in the Novell name in full and final settlement of all disputes between the companies. A formal settlement agreement was executed on 9th December 1988. I do not consider that the bringing of this action could properly be called "vexatious". Mr Price has always been very angry about this settlement, which was effected by the liquidator without any consultation with him at all, since he first heard of its terms in 1991.

The second action was started by Mr Price against Inc, UK, British Railways Board and Thorn EMI in the Cardiff District Registry in March 1990. The last two of these defendants had become peripherally involved in the dispute between Mr Price and the Novell Companies. A 47-page Statement of Claim, served a year later, was founded on the contention that Mr Price was personally entitled to rights in the Novell distributorship. He claimed damages for breach of contract, interference in contract, deceit, conspiracy, duress and threatening conduct in and since March 1989. On 14th April 1992 Boreham J, after a 4-day hearing, set aside the ex parte order granting Mr Price leave to serve Inc out of the jurisdiction and directed that his claim should be struck out, as against Inc, UK and Thorn EMI, as an abuse of the process of the court. In the first part of his judgment the judge said:

"In these circumstances it seems to me that the plaintiff really has no arguable case. The evidence points strongly to the conclusion that he chose, no doubt for very good business reasons, to use the limited company NDS to operate the distributorship as principal."

In the second part of his judgment he said that if Mr Prices contentions had any credibility, he should have been a party to the first action. In those circumstances he said that it would now be grossly unfair to the defendants to litigate those issues as to amount to an abuse of the process of the court. Only the claim against British Railways Board was not struck out. Mr Price later told Connell J: "Of course the 1990 action is similar to the 1988 action. I consider that the 1988 action was mine and I was cheated out of it."

Both Boreham J and Steyn LJ refused leave to appeal. Mr Price renewed his application for leave to appeal before Staughton LJ on 25th January 1993. Staughton LJ found it unnecessary to express any view as to whether Mr Price had personally ever acquired the distributorship rights or as to whether he at any stage ceased to have those rights and transferred them to NDS. He reached that conclusion because he was quite satisfied that the appeal against the decision to strike out the second action was quite unarguable. He said it was plain that the first action was started on Mr Prices instructions and based on his assertions, which he confirmed on affidavit, that NDS had the distributorship rights. This action was in due course settled for a not insignificant sum of money. "How then can it not be vexatious and an abuse of process for Mr Price to start a subsequent action based on an inconsistent premise to that which has been asserted with his assistance in the past?" Mr Price obtained leave to appeal against the order of Boreham J striking out his claim against Thorn EMI, but his appeal was dismissed in June 1993. He has recently reached a settlement with British Railways Board, the sole remaining defendant.

By now Mr Price had applied by Summons dated 5th November 1992, to be joined as a Plaintiff or co-Plaintiff in the first action, which the liquidator of NDS had settled. He sought to raise in that action the issues which Boreham J had told him he was not at liberty to raise in the second action. This application was dismissed with costs by Deputy Master Price on 6th January 1993. He advised Mr Price to regard the episode as closed and to divert his energy to more productive activity. Mr Price appealed and his appeal was dismissed by Chadwick J on 18th March 1994. He held that as a result of the compromise between NDS and the Novell defendants in 1988 there was no longer any question or issue the court needed to determine between the existing parties to the proceedings within the meaning of Order 15 Rule 6(2)(b)(i). He also held, in response to another of Mr Prices submissions, that there was no ground on which it could be held that the Novell defendants knew that in making the 1988 compromise NDS through its liquidator was acting in breach of any trust on which, according to Mr Price, NDS held the benefit of the October 1984 agreement in trust for him.

On 10th July 1995 Glidewell and Hirst LJJ refused leave to appeal for reasons similar to those given by Staughton LJ two and a half years earlier. Glidewell LJ said that in effect Mr Price was now seeking to go behind the arguments that were put forward on behalf of NDS at the time when he was in control of it. These efforts were quite properly stopped by Boreham J, and he wholly agreed with Chadwick J that there was no practical or proper way in which they could now be resurrected. He also added that new evidence which Mr Price sought to adduce on the hearing of the application for leave to appeal would make no material difference and could not in any event override the effect of the October 1984 agreement.

The next litigation arose from Mr Price lodging with the Patent Office in 1990 notice of his opposition to Incs application to register "Novell" as a trade mark. He alleged that the application was based on fraud and other illegal practices and that he had personally acquired the rights in the Novell name from NDS. On 14th April 1994 the Registrar dismissed this opposition with costs of 600. Mr Prices appeal to Jacob J was dismissed on 6th November 1995. An application for leave to appeal to the Court of Appeal is no longer being pursued.

On 6th October 1993 Mr Price issued proceedings claiming damages for negligence and/or breach of contract against the solicitors who acted for him and NDS before the first action began, and in that action, and against the barrister who advised and acted for NDS in the first action. This action is proceeding to trial.

Three months later Mr Price issued two writs out of the Cardiff District Registry. In the first of these actions, he claimed damages for collusion, conspiracy and deceit arising out of the appointment of the liquidator of NDS against the successor firm to the liquidators, the liquidator's solicitors, Inc and UK and their solicitors. The other action was brought against Inc, UK and their solicitors, British Railways Board and its solicitors, Thorn EMI and its solicitors, and three barristers who acted for those companies in the litigation involving Mr Price. In his action Mr Price claimed damages for collusion, conspiracy, deceit and/or fraud, breach of duty of care and/or perverting the course of justice arising out of the conduct of the Defendants in and about April 1991 and subsequently. In March 1994 these writs were followed by another writ issued by Mr Price out of the Cardiff District Registry against Inc, UK and NDS, in which he sought to set aside the settlement agreement in the first action.

On 28th July 1995 Connell J gave judgment on applications by most of the defendants to strike these actions out. He said that he realised that Mr Price felt an overwhelming sense of injustice as a result of the shabby treatment he felt he had received at the hands of Inc and UK, of his failure to obtain what he regarded as proper compensation from Inc and UK, and of his belief that the legal system in this jurisdiction had let him down in his pursuit of his justified claims, in particular against Inc and UK. He went on to direct that the first of these actions to be struck out as against all the defendants apart from the liquidator's successor firm and the liquidator's solicitors. He considered that the second action was a further attempt to re-litigate old issues. He struck the proceedings out as against five of the defendants. The three barristers reached a compromise with Mr Price after he had been ill the previous October when an application to strike the proceedings out had had to be adjourned. The action against the other two defendants was also settled.

The third action he also found "likewise plainly abusive" and he struck it out as against UK and Inc. He ordered Mr Price to pay the taxed costs of the application and the action to the Defendants who had succeeded on the strikeout applications. This action still continues as against NDS (in liquidation).

In the following month, August 1995, Mr Price applied to be joined as a Defendant or co-Defendant in an action which had been started in 1988 by Inc, UK and the then President of Inc when they obtained an injunction from Auld J restraining Mr Prices wife from publishing letters alleging that Inc and others were trying to put NDS out of business in a dishonourable way. This application is no longer being pursued.

On 12th July 1996 Mr Price issued a further writ against Inc and UK, claiming damages for breach of contract and/or other causes of action relating to the period between January and July 1996. A copy of this writ was sent to a representative of UK on the same day. It was never served and has now lapsed.

A yet further writ was issued on 28th October 1996 against Inc, UK, their solicitors and NDS claiming to impeach all the judgments to which I have referred for material non disclosure, fraud, deceit or misrepresentation. A 22-page Statement of Claim has been served, to which Inc, UK and their solicitors have served a Defence contending, among other things, that the claim is frivolous and/or vexatious and/or an abuse of the process of the court for much the same reasons as led the earlier proceedings to be struck out. In his Statement of Claim Mr Price claims damages, including punitive damages and damages for, amongst other things, the breakdown of his marriage.

In an affidavit on behalf of the Attorney-General Mr Peter Bennett, who is a solicitor employed in the Treasury Solicitor's Department, has explained to the court the course of all these proceedings. He has also produced a bundle of copies of extracts from some of the numerous and sometimes lengthy affidavits sworn by Mr Price in the course of all this litigation. In one affidavit sworn in January 1994 Mr Price said: "My mission is to get compensation for the loss and damage I have suffered or die in the attempt: give up I will not". The essence of the Attorney-General's case is that this attitude reflects Mr Price's litigious behaviour, so that he has refused and refuses to accept the repeated judgments of the Court, and has shown that he intends to continue to do so unless restrained by order of the Court.

Mr Bennett adds that one consequence of Mr Price's behaviour is that those he names as defendants to proceedings are forced to incur very considerable sums in legal costs to defend themselves. The solicitors for the Novell companies have told him that their clients obtained an order on taxation that Mr Price pay costs amounting to about 35,000 following the order of Boreham J in April 1992, which have not been paid, and that their clients have decided not to have other orders for costs against Mr Price taxed on the basis that it would be a waste of time and money to do so.

Mr Price has shown the court evidence of certain "without prejudice save as to costs" attempts by the Novell defendants in recent years to settle their dispute with him once and for all. In particular there was an offer of 50,000 in July 1994, an offer of 10,000 (to be accepted in 3 days) in July 1995 in an effort to avoid the costs of the proceedings before Connell J, and an offer of 20,000 in January 1996 "in full and final settlement of all matters whether raised by you or not" which Mr Price accepted 4 days later subject to contract. Unhappily the efforts to agree all the terms of an overall settlement contract broke down in July 1996, and Mr Price responded by issuing his penultimate writ. Throughout this time Novell and/or its lawyers have made it clear that they do not consider Mr Price's claims have any merit at all, but were willing to pay him something to save themselves further legal costs in litigating with him. We were willing to look at this material, although strictly it was inadmissible, in order to let Mr Price put before us everything he wished us to consider.

Mr Price attaches importance to his discovery in 1996 that on 9th December 1988, in addition to settling the UK action brought by NDS for 125,000, the liquidator of NDS also entered into a settlement of proceedings brought by Inc against NDS in the Nevada District Court alleging an infringement of its federal trademark "Novell". This Nevada agreement provided for a permanent world-wide injunction to be entered by consent in the Nevada court, which was expressed to be binding on NDS, its liquidator and its successors in-interest. He relies on this discovery in support of his plea of material non-disclosure and fraud in the impeachment proceedings he started in October of last year.

As to Mr Bennett's reference to costs, Mr Price contends that this is not a valid reason for the Attorney-General to make an application under Section 42, and that the proper procedure for any Defendant affected in this way is to take action to apply for security of costs or to take bankruptcy proceedings to enforce any taxed order for costs. It was a term of the proposed settlement agreement, which was never executed, that Inc would waive all orders for costs against Mr Price in favour of UK, Inc and their legal advisers, and he believed there was a positive balance in his favour in relation to various costs orders in his litigation with all the other defendants.

Another point he made in his affidavit was that because the parties to the 1988 settlement agreement left that action formally extant in case Mr Price sought to litigate the same issues in new proceedings, the blame for the resulting circuitry of actions lay squarely on their shoulders, and he saw no prospect of it coming to an end at present. In this part of his affidavit he went through the points which different courts have considered at some length in the first half of this decade all over again. He says he anticipates taking legal advice as to whether it is best to amend his pleadings in the 1993 or 1994 actions or to issue one or two fresh actions and apply for consolidation. Other than this, he has no thoughts of issuing any further proceedings.

As soon as the hearing started, Mr Gordon applied for an adjournment of these proceedings until after a court had determined the issues raised by his client in the 1996 impeachment action. He submitted that it would be quite wrong for this court to take a broad brush approach to all this litigation when Mr Price was seeking to have all the adverse judgments against him set aside for fraudulent non-disclosure. He relied in support of this submission on a passage in the judgment of Lord Donaldson of Lymington MR in Attorney General v Jones [1990] 1 WLR 859 in which he referred to a wish by the litigant in that case to challenge the conclusion of various judges in the underlying proceedings that his conduct in those particular proceedings had been vexatious or had involved an abuse of the process of the court. He said at p 863:

"We ruled that he was not free to do so. If any such conclusion was, or was thought by Mr Jones to be, erroneous, the remedy was to appeal in those proceedings or, where it was said that the judgment was vitiated by the fraud of other parties, to take appropriate steps to have the judgment set aside. But if that was not done, the decision must stand and is capable of forming the basis for the court being satisfied upon an application under section 42 that Mr Jones had habitually and persistently and without any reasonable ground acted in the manner referred to in subsection 1(a) and/or (b)".

Mr Gordon said that Mr Price was indeed taking one of the steps suggested by Lord Donaldson and that it would be premature to determine this application now. We dismissed this application, and said we would give our reasons later which we now do.

This is a case where the vexation complained of arises out of Mr Price's fixed idea that he has been wronged by the Novell defendants and his determination in successive proceedings which traverse more or less the same ground to have his wrong righted by the courts. On two occasions the Court of Appeal gave considered judgments, which we have read, when refusing him leave to appeal: on a third he has withdrawn his application for leave to appeal. In our view his attempt to have the earlier judgments impeached for fraud has no reasonable prospect of success. Although it is arguable that the Nevada settlement agreement and court order should have been disclosed earlier, there is no evidence remotely supporting a charge of fraud and in any event we cannot see how knowledge of the existence of these matters would have affected the judges who decided the earlier cases in any way. Mr Price has always asserted that he is the owner of the relevant rights as a predecessor-in interest of NDS. In those circumstances we cannot see how a world-wide injunction binding on NDS and its successors-in-interest adversely affects Mr Price in the way he claims. In those circumstances we could see no reason why we should not proceed to hear the Attorney-General's application.

Section 42(1) of the Supreme Court Act 1981 gives this court power, on an application made by the Attorney-General, to make a civil proceedings order if it "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;

(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 expression "civil proceedings order" is defined in Section 42(1A), and under Section 42(2) such an order may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

Mr Jay has submitted that the court's approach on an application for such an order should be a "broad brush" one, and should not be confined to an examination aimed at seeing whether in any given case the pleadings disclosed a reasonable cause of action (see In re Vernazza [1959] 1 WLR 622, DC, per Lord Parker CJ at p 624: [1960] 1 QB 197, CA, per Harman LJ at p 216). Moreover, he says the court is entitled to take into account the time and expense which is taken up with cases such as those which Mr Price had prosecuted when there is little enough time for meritorious cases to be dealt with (see Attorney-General v Jones [1990] 1 WLR 859 per Lord Donaldson of Lymington MR at pp 862-3 and Staughton LJ at p 865).

He contends that the evidence shows that Mr Price has been involved in actions that have taken up 30 days of court time and has had four actions struck out as being an abuse of process and one application dismissed. He says that it is apparent from the papers before the court that when Mr Price has lost in actions, he has resorted to alleging that legal representatives of his opponents engaged in a conspiracy against him. It is also apparent that Mr Price often appeals or tries to appeal when things go against him, but always without success. Mr Jay submits that in all the circumstances Mr Price feels a sense of grievance at the way he believes he has been treated which is unlikely to evaporate. This means that he will probably continue to engage in vexatious litigation unless the court makes the order requested.

Mr Gordons first point relates to the authority under which these proceedings were instigated. He drew our attention to the decision of this court in Attorney-General v Williams (1996) COD 368 where Pill LJ commented on the way in which there was evidence before the court that a law officer had personally considered the papers in the case and had authorised the making of the application. He said that bearing in mind the fundamental right under consideration, namely the right to bring proceedings before the courts, it was, in the court's view, appropriate that personal consideration was given to any proposed application by a law officer, and that evidence of such consideration should appear in the material before the court.

In the present case Mr Bennett has exhibited evidence which shows that on 18th April 1996 papers were submitted to the Attorney-General relating to a possible application for a civil proceedings order in this case, and inviting him to consider authorising the Solicitor General to act for the purposes of section 1(1)(c) of the Law Officers Act 1944. On the same day the Attorney-General gave the necessary authority and the Solicitor-General authorised the making of this application.

Mr Gordon has argued that without additional evidence the court will not know what documents were placed before the Solicitor-General before he gave his authority. Mr Jay has replied that it is not necessary for the Attorney-General to identify the documents, and that it is clear that the Solicitor-General applied his own mind to them. If necessary, he offered to demonstrate to the court that the papers included counsel's Advice, so long as privilege was not waived in relation to that Advice.

We are quite satisfied that these proceedings were properly constituted. It is clear that this application was personally authorised by the Solicitor-General under authority properly delegated to him by the Attorney-General under the 1944 Act. In a matter of this kind, a minister of the Crown, such as the Solicitor-General, would customarily consider the advice of others, including counsel, before reaching a decision, and there is certainly no need for him to give his personal consideration to every page of the bundle of papers placed before him. The business of government would very soon grind to a halt if the courts were to make requirements of that kind, and it is to Parliament, not to the courts, that the law officers are accountable for the way in which they exercise their statutory responsibilities (see Gouriet v Union of Postal Workers [1978] AC 435).

Next, Mr Gordon submitted that if we took into account the relevant provisions of the European Convention on Human Rights we would not make the order sought against his client. He submitted that Mr Price had an unfettered right of access to the courts under Article 6(1) of the Convention and the making of a civil proceedings order against him would represent a denial of that right.

In our judgment this submission is not well-founded. Article 6(1) does not create an absolute right of access to a court, come what may. The guiding principles were recently restated by the European Court of Human Rights in paragraph 59 of its judgment in Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 in the following terms:

"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."

These principles have been enshrined in the jurisprudence of the court for many years (see the judgments of the court in Golder (1975) and Ashingdane (1985)), and on two occasions the European Commission of Human Rights has regarded the national procedures in this country for handling vexatious litigants as conforming with its obligations under the Convention. In its report on the Golder case (Golder v United Kingdom, Comm. Report 1.6.73, para 95, Eur. Court. HR Series B no 16 p 52) the Commission said obiter:

"... Vexatious litigants in the United Kingdom are persons whom the courts treat specially because they have abused their right of access. But, having been declared a vexatious litigant, it is open to a person to prove to the court that he has a sustainable cause of action and he will then be allowed to proceed. The control of vexatious litigants is entirely in the hands of the courts ... such control must be considered as an acceptable form of judicial proceedings."

The Commission applied this approach in the later case of H v United Kingdom (Appl No 11559/85, 2 December 1985) when it gave its reasons for declaring inadmissible a complaint concerning the refusal by a judge in Scotland to grant leave to a vexatious litigant to bring an action. At p 285 it said:

"The vexatious litigant order ... did not limit the applicants access to court completely, but provided for a review by a senior judge of the Scottish judiciary of any case the applicant wished to bring. The Commission considers that such a review is not such as to deny the existence of the right of access to court: indeed some form of regulation of access to court is necessary in the interests of the proper administration of justice and must therefore be regarded as a legitimate aim" (cf No 727/60. Dec 5.8.60, Yearbook 3 pp 302, 309).

Although this country is bound by international obligation to honour the provisions of the Convention, they do not form part of our national law. It is, however, noticeable that the jurisprudence under Article 6 more or less exactly mirrors the way in which English judges operate the statutory regime created by Section 42 of the Supreme Court Act 1981 (for the comparable coherence between Article 6 and the inherent jurisdiction of this Court see AB and Others v John Wyeth and Brother Ltd (unreported, 13th December 1996): see also Attorney-General v Vernazza [1960] AC 965 for the emphatic statements by Viscount Simonds at p 975 and Lord Denning at p 977 that the purpose of the statutory procedure is to regulate access to the court, not to deny it).

Mr Gordon also advanced an argument that to make a civil proceedings order would infringe his clients rights under the law of the European Union. This point appeared to be completely academic, since his client is unemployed, has no direct right of access to the European Court of Justice (and this court could not impede him if he had) and has no current desire to have any question of law arising in any of his litigation referred to that Court for its opinion pursuant to Article 177 of the Treaty of Rome. It appears to us that the making of a civil proceedings order would not materially alter the present position. If a substantive point of European law arises in meritorious proceedings which he is granted leave to bring, then the fact that he has been declared a vexatious litigant will not affect a court's decision whether to refer the question pursuant to Article 177. However, as this situation has not arisen, it is sufficient for present purposes to treat this consideration as affording no ground for refusing the Attorney-General an order which we would otherwise be disposed to make.

Mr Gordon then took us carefully through the history of the litigation in an effort to persuade us that the statutory criteria under Section 42 of the 1981 Act were not fulfilled. He pointed out, for example, that his client had dropped both his application to join the proceedings brought against his wife and his appeal against Jacob JsJ's order when he believed incorrectly that he had reached a settlement with the Novell defendants: that his client had been willing to compromise his claim against the three barristers in the 1994 action without putting them to further expense and inconvenience in connection with their adjourned applications to have the claim against them struck out; that on occasion Mr Price has been paid some money by defendants as part of a compromise of proceedings; and that a few of his claims have not been struck out and are proceeding to trial.

We are not persuaded by these arguments, nor by the other matters addressed by Mr Price in his affidavit. Whatever one might think of the history up to January 1993, in that month Mr Price received the clearest possible message from both Deputy Master Price in the Chancery Division and from Staughton LJ in the Court of Appeal that his litigious campaign against the Novell defendants and their solicitors lacked any merit and was vexatious. Notwithstanding this warning he continued his campaign not only by appealing against the Chancery Masters order but by appealing against the order of the Registrar of Trademarks, by the three writs he issued against those Defendants in 1994, by seeking to be joined to the proceedings against his wife in 1995, and by the impeachment writ he issued and persisted with in 1996. We regard this conduct as vexatious, and the Attorney-General has indeed satisfied us that Mr Price has habitually and persistently and without reasonable ground instituted vexatious civil proceedings and made vexatious applications in civil proceedings.

There are now three final matters to be decided. Should we in the exercise of our discretion make a civil proceedings order? Should any order be limited or unlimited in time? And what order, if any, should we make in relation to the continuing proceedings?

The only matter that might have influenced us not to make a civil proceedings order was the consideration that Mr Price, like the litigant in Re Vernazza [1959] 1 WLR 622 is a man with a single all-pervading grievance and a civil proceedings order would have the effect of obliging him to pay a 50 premium to the State (being the current fee for a High Court application in the Queen's Bench and Chancery Divisions) whenever he sought to issue civil proceedings of any kind or to make an application in any such proceedings. There is, however, no evidence that he has ever been involved in any civil proceedings before the Novell dispute blew up, nor any evidence that he wishes or intends to get himself involved in any non-Novell proceedings in the future, so that the weight we should give to this factor in the exercise of our discretion is more limited than it otherwise might have been.

We inquired of Mr Jay whether the High Court had in its inherent jurisdiction made orders against vexatious litigants before the creation of the broadbrush statutory remedy in the Vexatious Proceedings Act 1896. After taking instructions overnight he told us that the Law Officers' Department knew of five, or possibly six cases between 1888 and 1896 in which the court had made a blanket order against a vexatious litigant of the type that was given a codified form in the 1896 Act. Since the remedy was now codified and the statutory remedy could not be limited so as to apply to legal proceedings against a particular defendant only (see Re Hutchinson [1929] WN 102) he requested us not to have recourse to the inherent jurisdiction of the court to make an individualised order limited to "Novell litigation", and if Parliament, despite the influence of Article 6 of the European Convention on Human Rights, has not given the High Court a more flexible range of remedies against vexatious litigants it does not appear to us to be appropriate for this Court, on the basis of limited argument and with evidence before it of the Parliamentary preference, to embark on such a course, particularly if the Attorney-General does not invite us to consider it. We saw evidence, by chance, in a case we heard the day after the hearing in the present case finished, of the willingness of the Attorney-General to invoke the inherent jurisdiction of the court in a case where the remedies provided by Section 42 of the 1981 Act were perceived to be insufficient. On 22nd January 1997, in A-G v Landau, this court granted a permanent injunction on the application of the Attorney-General to restrain a vexatious litigant from issuing statutory demands as a prelude to bankruptcy proceedings.

We also took into account the possible administrative and other inconvenience involved in making an order limited to a single category of vexatious litigation. We considered, for example, vexatious arguments as to whether any particular litigation or application was caught or not caught by the terms of a limited order. Taking all these factors into consideration we considered it just, in the exercise of our discretion, to make a statutory order in the usual way.

Next, the length of the order. The power of the Court to make an order limited in time was first introduced in 1981, and we were told by Mr Jay that until now it has never been exercised. He expressed concern that if a limited order was made a vexatious litigant might seek to revive old causes of grievance by assertions that his or her cause of action had been concealed by equitable fraud so as to prevent time running under the Limitation Act.

It appears to us that this in itself is no good reason for not making a time-limited order if we considered that the justice of the case demanded it. If litigation we regard as vexatious was revived after a time-limited order expired, the Attorney-General could always come back to this court for appropriate relief, and it may be desirable when the wording of the statute is next under review to make it completely clear that the court could grant such relief notwithstanding that the once vexatious litigant had not had time to satisfy the criteria in Section 42(1) all over again since his or her discharge from a time-limited order. In our judgment, given that the power to make a time-limited order exists, we ought to exercise it in this case. We do not derive much assistance from the cases concerned with the disqualification of company directors (see Millard (1994) 15 Cr App R (S) 445) where the purpose of the jurisdiction is somewhat different and the maximum permissible period of disqualification is 15 years. Mr Price is now 53. Provided that he is prevented from embarking on civil proceedings (or making applications in civil proceedings) for 15 years, we consider that an appropriate balance would be struck between the need to bring the present nuisance very firmly to an end and the desirability of removing the restriction from Mr Price at a time when it is no longer likely to serve any very useful purpose. We therefore make a civil proceedings order against him for 15 years.

Finally, what about the continuing proceedings which have not been struck out? Unless we were minded to make an express order granting Mr Price leave to continue any proceedings under Section 42(3) of the Act, Mr Jay submitted that it would be preferable if we expressed no opinion on the merits of any of the continuing litigation, which Mr Price would need to seek leave to continue. We consider this to be the appropriate course for us to take.

We were told that interlocutory proceedings in action 1993 P No 1098 against solicitors and barristers who were on the side of NDS/Mr Price in the 1984-1988 history have been adjourned pending the result of this application. The continuation of these proceedings are caught by this order, and Mr Price will have to seek leave from a judge if he wishes to continue them. The position in relation to action 1996 P No 1467 is exactly the same.

We grant leave to Mr Price to continue action 1994 P No 30 against the first two Defendants, Touche Ross & Company and Judge, Sykes and Harrison. They did not apply to Connell J to strike the action out against them, and it appears to us that the statutory requirements contained in Section 42(3) of the Act are satisfied in this instance.

As to action 1994 P No 236, which only remains alive as against NDS (in liquidation), we are not aware that Mr Price has obtained the leave of the Companies Court pursuant to Section 19(1) of the Insolvency Act 1986(1) to bring these proceedings. In so far as they have any legal status, they are caught by the terms of the Order.

For the reasons we have given, we make a civil proceedings order for 15 years against Mr Price pursuant to our powers contained in Section 42(1) of the Supreme Court Act 1981. We grant him leave, pursuant to Section 42(3) of that Act, to continue his existing action 1994 P No 30 against the first two defendants named in that action.

MR GORDON: I am obliged. No further orders.

MR JAY: I would ask for leave to appeal.

LORD JUSTICE BROOKE: On what grounds?

MR JAY: On the grounds that the court has wrongly decided the matter. First of all on the authority of Attorney-General --

LORD JUSTICE BROOKE: The Attorney-General is in all these cases.

MR JAY: Yes, but the Attorney-General properly authorised these proceedings. Secondly, that the matters mentioned in case P 1467 are all in effect sub judicae because, as was cited in authority last week, per Lord Justice Donaldson in that case in the Attorney-General v Jones where he indicated that where the respondent had not exhausted the possibilities, and specifically I refer to the possibilities of having previous decisions set aside on the grounds that they were vitiated by fraud. That under those circumstances it was not appropriate for the court to decide those matters before those respective courts had decided those matters. That is the last ground, my Lord.

LORD JUSTICE BROOKE: Those are your grounds. Do you wish to make any observations?

MR GORDON: The Attorney-General is neutral on questions like this.

LORD JUSTICE BROOKE: No, we do not grant leave, you must go to the Court of Appeal where you can seek leave.

MR JAY: That just leaves the matter of legal aid taxation.


Attorney General v Price (Court of Appeal)
Back To Queen's Bench Index
Back To Site Index