Johnson, R (on the application of) v Attorney General

An omission to seal an originating notice under the former Rules of the Supreme Court is an irregularity, not a nullity. The court has a discretion to set aside proceedings or an order, but that discretion must be exercised justly and an application must be made within a reasonable time. Where the applicant understood the proceedings, participated fully, suffered no actual prejudice and delayed for many years after the order, justice does not require the order to be set aside.

In 1986 the claimant was declared a vexatious litigant under section 42 of the Supreme Court Act 1981. In 2005 he applied to set aside the proceedings on the ground that the Attorney General’s originating notice of motion had not been sealed as required by Ord 8, r 3(6) of the Rules of the Supreme Court.

The court file and the Attorney General’s file were unavailable. The claimant produced documents suggesting that the notice might not have been sealed. The central issues were whether any omission was a nullity and whether the delay, absence of prejudice and conduct of the proceedings justified setting aside the order.

1. The application was dismissed. The court found a real possibility that the notice of motion had not been sealed, but treated that omission as an irregularity rather than a nullity.

2. Under Ord 2, r 1 of the Rules of the Supreme Court, a procedural failure does not automatically nullify proceedings, a step, document, judgment or order. The court may set aside the relevant matter, in whole or in part, on terms that are just. Ord 2, r 2 also requires an application to be made within a reasonable time and before the applicant takes a fresh step after becoming aware of the irregularity.

3. The approach in Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 was applied. The rules abolish the former distinction between nullities and irregularities and permit the court to rectify procedural mistakes where this can be done without injustice.

4. The claimant had known what was being served, understood that Supreme Court proceedings were being brought against him, participated in a full hearing and suffered no actual prejudice. Although he acted promptly after discovering the possible omission, many years had elapsed since the order. The balance of justice therefore favoured the Attorney General and there was no sufficient reason to reconsider or set aside the order.

5. Permission to appeal was refused because the proposed point had no real prospect of success. Costs were ordered to be determined if not agreed, the usual rule that the unsuccessful party pays being applied.

This was a first-instance application. The judgment records that the claimant had previously been declared a vexatious litigant in 1986. The present application to set aside the resulting order was dismissed, and permission to appeal was refused.