Attorney General v Ali

An application under section 42 of the Supreme Court Act 1981 involves two stages. The court must first decide whether the respondent has habitually and persistently, without reasonable ground, instituted vexatious proceedings or made vexatious applications. If so, the court has a discretion whether to make a civil proceedings order.

Persistent litigation which is incompetently and unintelligibly formulated may itself be vexatious. The court may prefer a section 42 order to an undertaking where an undertaking would provide inadequate protection. Such an order restricts access to the courts by imposing a condition, rather than prohibiting meritorious litigation. A penal notice may be appropriate where the overall litigation history shows a risk of circumvention.

The Attorney General applied under section 42 of the Supreme Court Act 1981 for a civil proceedings order against Haider Ali. Mr Ali had issued numerous claims, principally concerning prison authorities and staff. Several claims had been struck out, a general civil restraint order had been made, and numerous applications for permission to proceed had been refused. Other proceedings had been stayed subject to compliance with CPR 1.3.

The defendant sought an adjournment so that newly instructed solicitors could investigate the underlying merits and offered an undertaking to issue claims only through a solicitor. The central issues were whether the statutory threshold was met, whether the court should exercise its discretion to make the order, and whether a penal notice should be attached.

1. The adjournment application was refused. The court was required to proceed on the basis of existing strike-out orders, refusals of permission, the general civil restraint order and the stay. It was not entitled to investigate the underlying merits of those earlier adjudications, applying Attorney General v Jones [1990] 1 WLR 859.

2. The statutory test under section 42 had two stages. First, the Attorney General had to establish habitual and persistent institution of vexatious proceedings, or making of vexatious applications, without reasonable ground. Secondly, if that threshold was met, the court had a discretion whether to make a civil proceedings order. The meaning of the statutory expressions was stated in Attorney General v Barker [2001] FLR 759.

3. The first stage was amply satisfied. The relevant strike-outs, refused applications, general civil restraint order and stay demonstrated persistent litigation without reasonable grounds or involving abuse of process. It was itself vexatious to subject defendants to persistent litigation which was incompetently and unintelligibly formulated.

4. The court exercised its discretion to make the order. Mr Ali’s anticipated release was given little weight. Although an undertaking had sometimes been accepted, as illustrated by HM Attorney General v Flack, the general civil restraint order had not prevented unmeritorious claims, and an undertaking would provide less readily enforceable protection.

5. A penal notice was attached. The order was restrictive of access to justice but was not a prohibition on future litigation. Meritorious and properly formulated claims could still proceed, subject to satisfying the court before commencement. The application was therefore granted and a civil proceedings order with a penal notice was made.

First-instance application under section 42 of the Supreme Court Act 1981. The judgment records earlier Cambridge County Court strike-outs, a general civil restraint order, refusals of permission and stays, but no appeal from a lower decision.