HM Attorney-General v Boothe-Chambers

A vexatious litigant order under section 42 of the Supreme Court Act 1981 may require permission before existing proceedings are continued. The court need not be deterred from making such an order by outstanding appeals forming part of the applicant’s wider litigation history. An indefinite order is lawful where the history and volume of applications justify it. A previous Grepe v Loam order does not prevent a further order under section 42, and the orders may operate concurrently. The statutory scheme is compatible with the obligations under the European Convention on Human Rights and the Human Rights Act 1998.

The applicant sought permission to appeal against a vexatious litigant order made by the Divisional Court on 14 June 2001 at the Attorney-General’s instance. The order required him to obtain permission from a High Court judge before continuing existing proceedings. He argued that the Divisional Court had failed to give sufficient weight to two outstanding appeals, that its composition gave rise to apparent bias, that he should have seen a Bench Memorandum, that the order should have been time-limited, that it could not coexist with a Grepe v Loam order, and that section 42 was incompatible with Articles 6 and 10. The central issue was whether any of those grounds disclosed an arguable appeal.

1. The application for permission to appeal was refused. The history of the applicant’s numerous applications and appeals amply demonstrated that the statutory criterion for a vexatious litigant order under section 42 of the Supreme Court Act 1981 was satisfied.
2. The existence of two outstanding appeals did not undermine the order. The Divisional Court had understood their position and was entitled not to be deterred by them in light of the applicant’s wider litigation history. A section 42 order does not prohibit all proceedings; it requires permission from a High Court judge before existing proceedings are continued.
3. The apparent-bias complaint failed. Applying the test stated in Re Rabinowitz [2001] 1 WLR 700, and approved by the House of Lords in The Application of Lady Porter, a fair-minded and informed observer would not conclude that there was a real possibility of bias merely because the judge had previously acted for the Attorney-General in vexatious litigant applications.
4. The applicant was not entitled to disclosure of the Bench Memorandum. The guidance in Covey, including that an applicant was not entitled to see such a memorandum, was applicable.
5. The Divisional Court made no error of law in imposing an indefinite order. The history and weight of the applications justified that conclusion. A further section 42 order could also run concurrently with an ineffective Grepe v Loam order.
6. The human-rights challenge failed. Following Ebert v Official Receiver [2001] EWCA Civ 340, the vexatious-litigant legislation was not inconsistent with the United Kingdom’s Convention obligations or the Human Rights Act 1998.

• Divisional Court, Queen’s Bench Division: on 14 June 2001 made a vexatious litigant order under section 42 of the Supreme Court Act 1981.
• Court of Appeal (Civil Division): refused the application for permission to appeal.