HM Attorney General v Douglas

For the purposes of a civil proceedings order under section 42 of the Supreme Court Act 1981, the court must assess the litigant’s conduct by reference to the whole history of the litigation. It may rely on findings made in earlier proceedings and must not re-examine the merits of those decisions as a quasi-appellate court. Repeated litigation, relitigation of matters already decided, and proceedings having little or no reasonable foundation may establish habitual, persistent and vexatious litigation even where some claims have been withdrawn or individual costs applications have failed. Earlier litigation considered in a previous section 42 application is not excluded by res judicata or issue estoppel where the earlier court made no final order and instead exercised its discretion to adjourn or dismiss the application.

The Attorney General applied under section 42 of the Supreme Court Act 1981 for a civil proceedings order against Paula Douglas. She applied to strike out the Attorney General’s application. The proceedings followed an earlier section 42 application in 2001, when the court found that the statutory test was satisfied but adjourned the matter for 12 months to give her an opportunity to desist from further litigation. The application was later dismissed by consent after an apparent improvement, but substantial litigation resumed. The central issues were whether the earlier litigation could be considered again, whether the subsequent conduct was habitually, persistently and vexatiously pursued without reasonable ground, and what form any order should take.

1. Application and strike-out. The application to strike out the Attorney General’s proceedings was dismissed. The court made a civil proceedings order under section 42 of the Supreme Court Act 1981, without limitation in time.
2. Applicable approach. The court must take an overview of the litigant’s activities, considering the number of proceedings, their general content and their results. It must look at the whole history and may rely on conclusions reached by judges in earlier proceedings. It must not investigate the merits of those cases or act as a quasi-appellate court.
3. Statutory test. The court was satisfied that the defendant had habitually and persistently, and without reasonable ground, instituted vexatious civil proceedings and made vexatious applications. The repeated pursuit and reopening of connected grievances, including matters previously decided, together with the volume and character of the proceedings, amounted to a torrent of misjudged litigation. Withdrawals, discontinuances and occasional failures to obtain costs orders did not alter that conclusion.
4. Earlier proceedings. The litigation relied on in the 2001 application was not excluded by res judicata or issue estoppel. The earlier court had found the statutory test satisfied but had exercised its discretion to adjourn the matter and later allowed the application to be dismissed. The Attorney General had expressly preserved reliance on the earlier material if the conduct resumed.
5. Form of order and leave. A further indulgent order of limited duration was inappropriate. The defendant could later apply for discharge. The court did not grant leave for any existing proceedings, but specific applications concerning ongoing or new proceedings could be made to a High Court judge in the usual way.
6. Ancillary matters. The court declined to attach a penal notice, although it accepted that it had jurisdiction to do so. Permission to appeal was refused because the case had no real prospect of success, but permission was granted to seek permission to appeal from the Court of Appeal.

The judgment describes an earlier section 42 application determined by the Divisional Court in 2001, when the statutory test was found satisfied but the matter was adjourned. In 2002 the application was dismissed by consent after an apparent improvement. The present court made a fresh order under section 42. Permission to appeal was refused, with leave to seek permission from the Court of Appeal.