Attorney General v Douglas

A restraint order under section 42 should be made where a litigant’s history shows repeated vexatious proceedings and no realistic alternative protects the courts. The order does not bar meritorious claims. It requires the litigant first to obtain judicial permission.

The court must consider the order’s individual impact, including serious consequences for a legal career. That impact does not outweigh the need to protect court resources and other litigants where the history justifies restraint. A section 42 order may properly be unlimited in time, subject to a future application for its removal.

The appellant sought permission to appeal from a Divisional Court order, made on 8 June 2006 under section 42 of the Supreme Court Act 1981. The Attorney General had obtained the order after the appellant resumed extensive litigation following an earlier period in which she had desisted from such proceedings.

She contended that the proceedings were not vexatious, that the Divisional Court had failed to address their causes and had been biased, and that the order unfairly impeded her intended legal career. She also sought a reference to the European Court in Luxembourg on grounds concerning European Union freedoms.

1. Application for permission to appeal refused. The history of litigation left the Divisional Court with no realistic alternative but to make the section 42 order. It was entitled to treat the renewed proceedings, after the earlier opportunity to desist, as demonstrating a need for restraint.

2. The purpose of such an order is to protect courts and other litigants from unjustified litigation and its demands on time, money and court capacity. It does not prevent a litigant from bringing a properly arguable claim: proceedings may be brought with a judge’s permission.

3. A court considering a section 42 order must take account of its effect on the individual. The effect may be especially serious for a legally qualified person seeking a legal career. However, that adverse impact did not outweigh the protective purpose of the order on these facts.

4. The court followed Ebert v The Official Receiver [2001] EWCA Civ 340 as binding authority that such an order does not infringe rights under the European Convention on Human Rights or the Human Rights Act 1998. There was no basis for the proposed European reference. The order could properly be made without a time limit, since the appellant could later apply for its removal.

• Court of Appeal: Permission to appeal was refused against the Divisional Court’s order under section 42 of the Supreme Court Act 1981.
• Divisional Court: On 8 June 2006 it made the section 42 restraint order. Its neutral citation was not stated in the judgment.
• Divisional Court: In earlier proceedings in July 2001, it made no order and adjourned the Attorney General’s application for a year. A later decision made no order after the appellant desisted during that period.