Ewing & Ors, R (on the application of) v Department of Constitutional Affairs

A practice direction may regulate the procedure for applications by vexatious litigants where the governing legislation and rules leave a procedural gap. It may not remove access to justice or dispense with fairness. Fairness does not require an oral hearing in every case. The appropriate question is whether an oral hearing is required by the subject matter, circumstances, factual issues, decision to be made and statutory framework. A paper determination is lawful where the judge retains a genuine discretion to direct an oral hearing whenever fairness requires it. The restriction imposed on vexatious litigants was proportionate and pursued the legitimate aim of preventing abusive litigation and securing efficient administration of justice.

The first and second claimants were subject to civil proceedings orders under section 42 of the Supreme Court Act 1981. They challenged an amendment to paragraph 7.6 of Practice Direction 3, supplementing Part 3 of the Civil Procedure Rules. The amendment removed the previous entitlement to an oral hearing for non-repetitious applications for leave under section 42(3), and gave the High Court judge a discretion to decide applications on paper or direct a hearing.

The claim alleged that the amendment was ultra vires, contrary to natural justice and fairness, incompatible with article 6(1) of the Convention, and discriminatory under article 14. The third claimant, who was not subject to a civil proceedings order, renewed her application for permission to challenge the amendment.

1. Third claimant. Permission was refused. Marriage to a person subject to a civil proceedings order did not give her a sufficient interest. Any unfairness in separate proceedings had to be addressed through the ordinary appellate process.
2. Ultra vires. The Civil Procedure Act 1997 did not remove or restrict the High Court’s inherent jurisdiction to issue practice directions governing its own procedure. Section 5 and Schedule 1 paragraph 6 recognised the role of practice directions, while leaving them subordinate to the statutory rules. The amendment filled a procedural gap because section 42 of the Supreme Court Act 1981 and the Rules did not prescribe the procedure for applications under section 42(3).
3. The amendment did not create an absolute bar on access to the courts. Applicants could present written evidence to a High Court judge, who retained an unfettered discretion to direct an oral hearing. The Practice Direction created no presumption for or against a hearing. The judge was required to apply the overriding objective and direct a hearing where fairness required one.
4. Fairness. At common law there is no general right to an oral hearing in every case. The requirements of fairness depend on the character of the decision-maker, the nature of the decision, the factual issues and the statutory or procedural framework. Applications under section 42(3) ordinarily concerned whether proceedings, on the applicant’s case, were abusive and whether there were reasonable grounds. They normally did not require contested fact-finding. If factual uncertainty or other circumstances made a hearing necessary, the Practice Direction permitted one.
5. Convention rights. The restriction pursued the legitimate aim of preventing vexatious litigation and was proportionate. The essence of the right of access to court was preserved. Article 6(1) did not require an oral hearing in every application, and the judicial discretion to direct a hearing supplied the necessary flexibility. Article 14 was not infringed because persons subject to civil proceedings orders were not in a similar situation to ordinary litigants and were treated alike within their class.
6. The four grounds of challenge were rejected. The judicial review claim was dismissed. The first and second claimants were ordered to pay the defendant’s costs, subject to detailed assessment. The third claimant incurred no costs order. Permission to appeal was refused, but the first and second claimants were given section 42(3) leave to apply to the Court of Appeal, and the costs order was stayed pending that application or expiry of the relevant time limit.

This was a first-instance judicial review claim in the Administrative Court. The judgment states that permission to apply for judicial review had previously been granted to the first and second claimants, while permission was refused to the third claimant. Permission to appeal was refused by this court, although section 42(3) leave was granted to the first and second claimants to apply to the Court of Appeal.