Attorney General v Badibanga

An all proceedings order requires proof that the litigant has acted habitually and persistently, and that the proceedings were vexatious and brought without reasonable ground. The court examines the whole history of the litigation and assesses the individual circumstances. Repeatedly pursuing substantially the same claims, automatically challenging adverse decisions, disregarding court orders and continuing after unsuccessful litigation may establish the necessary pattern. The order does not permanently prevent access to the courts: proceedings may be brought with the permission of the court where there are good grounds.

The Attorney General applied under section 42 of the Supreme Court Act 1981 for an all proceedings order against Kay Etienne Badibanga. The application relied on numerous unsuccessful civil claims, applications, appeals and attempted criminal prosecutions, including repeated litigation concerning substantially the same subject matter and alleged disobedience of court orders. The central issue was whether the statutory conditions for restricting further proceedings were established and whether the court’s discretion should be exercised.

1. Order made. The Divisional Court was satisfied that the defendant had habitually and persistently, without reasonable ground, instituted vexatious civil proceedings, applications and appeals, and had instituted or sought to institute vexatious criminal prosecutions.
2. For an application of this kind, it must be shown that the litigant has acted both habitually and persistently, and that the litigation was vexatious and without reasonable ground. In deciding whether conduct is vexatious, the court considers the whole history of the matter: Re Vernazza [1959] 1 WLR 622.
3. The litigant cannot use the application to challenge the conclusions reached by other courts that earlier proceedings were vexatious or an abuse of process. Any error in those decisions must be pursued by appeal: Attorney General v Jones [1990] 1 WLR 859 at 863D–F.
4. Habitual and persistent litigation commonly includes repeatedly suing on the same cause of action after it has been ruled upon, pursuing the same cause against successive parties, automatically appealing adverse decisions, and refusing to recognise or comply with court orders. The essential vice is continuing to litigate after earlier litigation has failed when, on a rational and objective assessment, it is time to stop: Attorney General v Barker [2000] 1 FLR 759 at 764F–H.
5. The evidence demonstrated repeated claims and challenges concerning the same subject matter, numerous failures, disregard of orders including Grepe v Loam orders, and no sign that the activity would abate. The discretion under section 42 should therefore be exercised in favour of making the order.
6. The order did not permanently exclude the defendant from litigation. He could institute appropriate proceedings if he first obtained the court’s permission and demonstrated good grounds.