Attorney General v Bhamjee

For a civil proceedings order under section 42 of the Supreme Court Act 1981, the court must determine whether the litigant has habitually and persistently instituted vexatious proceedings or applications without reasonable ground. The court assesses the whole history, including both the outcomes and prospects of the litigation. Vexatious features include repeated litigation after the proper time to stop has passed, no discernible legal basis, disproportionate inconvenience or expense, and abuse of court process. If the statutory conditions are met, the court exercises its discretion by balancing the citizen’s right to litigate against the need to protect others and the courts from abusive or ill-founded claims.

The Attorney General applied for a civil proceedings order under section 42 of the Supreme Court Act 1981. The application followed extensive unsuccessful litigation by Ismail Bhamjee concerning a planning dispute and related proceedings against public bodies, lawyers and other parties. An interim section 42 order had already been made, and the evidence described further attempted claims and applications. The central questions were whether the statutory preconditions were satisfied and whether the court should exercise its discretion to restrain further proceedings.

1. The court held that the statutory preconditions in section 42 of the Supreme Court Act 1981 were satisfied. Mr Bhamjee had habitually and persistently, and without reasonable ground, instituted vexatious civil proceedings and made vexatious applications.
2. In assessing vexatiousness, the court applied the guidance in Re Vernazza and Attorney-General v Barker. The court must examine the whole history. Relevant indicators include repeated litigation after earlier proceedings have failed, the absence of a discernible legal basis, disproportionate inconvenience, harassment and expense, and abuse of the court process. The court may consider both actual outcomes and prospects of success.
3. Under Attorney-General v Jones, the Divisional Court may rely on conclusions reached in underlying proceedings that claims were vexatious or abusive. Those conclusions cannot ordinarily be challenged in the section 42 proceedings unless successfully appealed.
4. The court balanced Mr Bhamjee’s right to litigate against the need to protect opposing parties and the courts. His repeated claims, applications, appeals, disregard of costs orders and continuing attempts to relitigate substantially the same matters demonstrated a real risk of further litigation. A civil proceedings order was therefore made without limit of time. Permission to appeal to the House of Lords was refused.

The judgment records earlier unsuccessful planning and related proceedings, including a Court of Appeal order in [2003] EWCA Civ 1113. This application was determined at first instance by the Divisional Court of the High Court.