Ebert v Official Receiver

The statutory control of vexatious litigants under the Supreme Court Act 1981 is compatible with Article 6 of the ECHR. Requiring a vexatious litigant to obtain leave before seeking permission to appeal does not unlawfully impair access to a court. The statutory scheme remains under judicial control, permits reconsideration on new facts or complaints, and regulates access proportionately to protect court resources. Judges should apply the existing domestic criteria when deciding applications under section 42(3). If leave to apply to the Court of Appeal for permission to appeal is refused, section 42(4) prevents any appeal against that refusal. The High Court alone has power to grant leave under section 42, so the Court of Appeal cannot entertain an original application after the High Court has refused leave.

Mr Ebert was subject to a civil proceedings order under section 42 of the Supreme Court Act 1981. Neuberger J refused his substantive application and refused permission to appeal. The judge granted leave for Mr Ebert to apply to the Court of Appeal for permission to appeal, while raising the question whether refusing such leave would violate the Human Rights Act 1998 or Article 6 of the ECHR.

The Court of Appeal dismissed the application for permission to appeal and delivered further guidance on the operation of the vexatious litigant provisions. The central issues were whether the High Court was constrained by the Convention when deciding whether to grant leave under section 42(3), and whether the prohibition on appeal in section 42(4) was unlawful.

The Court of Appeal dismissed the application for permission to appeal. It nevertheless addressed the point raised by the judge below because it was likely to recur.

1. Compatibility with Article 6. The general system under section 42 of the Supreme Court Act 1981 complies with Article 6 of the ECHR. The right of access to a court is not absolute. The scheme preserves judicial control, requires detailed inquiry before restrictions are imposed, permits reconsideration in light of new facts or complaints, and subjects each procedural step to a separate judicial decision.
2. Proportionality. The scheme legitimately prevents a small number of litigants from monopolising court services. The reasoning in Golder v United Kingdom (1975) 1 EHRR 524, H v UK (1985) 45 D&R 281, and Ashingdane v UK (1985) 7 EHRR 528 supported that conclusion. The Divisional Court’s decision in HM Attorney General v Matthews The Times, 2 March 2001 was also consistent with it.
3. Applications under section 42(3). Judges should continue to apply the criteria established by domestic law. The Human Rights Act 1998 does not alter those criteria. An application for leave to apply to the Court of Appeal for permission to appeal should be determined on its merits.
4. No appeal from refusal of leave. Section 42(4) prevents an appeal to the Court of Appeal against a High Court refusal of leave. Convention law does not require a state to provide an appellate procedure, as distinct from access to a court of first instance: Belgian Linguistic Case (No 2) (1968) 1 EHRR 252.
5. Exclusive High Court jurisdiction. The powers to grant leave under section 42 belong exclusively to the High Court. A vexatious litigant refused leave by the High Court cannot make an original application to the Court of Appeal, and such an application should not be placed before the court.

• High Court, Chancery Division: Neuberger J refused Mr Ebert’s substantive application and refused permission to appeal. He granted leave to apply to the Court of Appeal for permission to appeal on the human-rights issue.
• Court of Appeal: The application for permission to appeal was dismissed. The court gave further guidance confirming the compatibility of the statutory vexatious litigant scheme with Article 6.