HM Attorney General v Pepin

A civil proceedings order under Supreme Court Act 1981, section 42, requires habitual and persistent vexatious litigation or applications made without reasonable grounds. The court assesses the litigant’s conduct as a whole. Repeated attempts to re-litigate substantially the same matters, coupled with oppressive conduct causing disproportionate inconvenience and expense, may satisfy the statutory test even where individual claims disclose a cause of action or have some arguable merit. The court must consider whether lesser procedural restraints would be effective, but a previous lesser order is not a precondition. A section 42 order may be proportionate where the overall conduct seriously abuses court processes, while permission may be preserved for a claim that was not itself vexatious and is properly represented.

The Attorney General applied for a civil proceedings order against John Pepin under section 42 of the Supreme Court Act 1981. The application arose from ten sets of proceedings, principally concerning police searches, disclosure of police intelligence information and related complaints. Several proceedings repetitively re-litigated the same subject matter, and Mr Pepin had conducted them through numerous unsuccessful applications, interlocutory challenges and attempts to delay or avoid trial.

Mr Pepin accepted that he had litigated persistently and had sometimes been a poor litigant, but contended that his grievances might have merit and that a statutory order would be disproportionate. The central issues were whether his conduct was habitually and persistently vexatious and whether a section 42 order could be made without an earlier lesser restraint.

1. Statutory threshold. The court held that section 42 requires habitual and persistent institution of vexatious proceedings or making of vexatious applications without reasonable ground. The assessment must be based on the whole history. The essential features include disproportionate inconvenience, harassment and expense, and abuse of the court process. Lack of any legal basis is not invariably required.
2. Conduct in this case. Although the first claim concerning disclosure of the Criminal Intelligence Service report was not vexatious in its institution and was due for trial, the subsequent claims largely re-litigated the same matters. The aggressive and oppressive conduct of the proceedings was itself without reasonable ground, whatever merit the underlying complaints might have possessed. The Attorney General therefore established both statutory limbs of the alleged conduct.
3. Merits and lesser restraints. On a section 42 application the court cannot reconsider the merits of the underlying claims. The observations in Bhamjee v Forsdick [2004] 1 WLR 88 did not impose a mandatory step-by-step sequence requiring a prior lesser order. The court must consider whether lesser options would be effective, but section 42 contains no such precondition.
4. Proportionality and order. A section 42 order is draconian but Convention-compliant where necessary and proportionate. Given the multiplicity and repetition of the proceedings, their oppressive conduct and the continuing risk of further abuse, lesser measures would not suffice. The court made an unlimited civil proceedings order under section 42(1A)(a), (b) and (c), but permitted continuation of the first claim only while Mr Pepin was advised by, and represented by, an advocate with higher court rights of audience.