HM Attorney General v Ford & Anor

Under section 42 of the Supreme Court Act 1981, the court must first decide whether a person has habitually and persistently, without reasonable grounds, instituted vexatious civil proceedings or made vexatious applications. If that threshold is met, the court retains a discretion to make a civil proceedings order.

The discretion requires a balance between access to justice and protection of opponents and court resources from abusive litigation. Relevant indicators include repeatedly re-litigating substantially the same issues, automatically challenging adverse decisions, disregarding court orders and pursuing claims lacking a rational legal basis. A civil proceedings order is a filter requiring prior leave, rather than an absolute denial of access to the courts.

The Attorney General applied under section 42 of the Supreme Court Act 1981 for civil proceedings orders against Daniel and Liubov Ford. The application followed extensive litigation concerning residential property, including repeated attempts to challenge earlier orders, possession proceedings, valuation proceedings and related judicial reviews.

The defendants relied on a small number of successes and disputed the characterisation of their litigation as vexatious. The central issues were whether the statutory conditions were satisfied and, if so, whether the court should exercise its discretion to impose the statutory restrictions.

1. Statutory threshold. The court held that the Attorney General had proved that the defendants had habitually and persistently, without reasonable grounds, instituted vexatious proceedings and made vexatious applications within the meaning of section 42 of the Supreme Court Act 1981. The history showed repeated reworking of substantially the same issues, routine appeals against adverse decisions, disregard of orders and costs liabilities, and litigation lacking a proper legal foundation.
2. Meaning of vexatious litigation. Proceedings may be vexatious where they have little or no discernible legal basis and impose inconvenience, harassment and expense out of proportion to any likely benefit. The misuse of court process is relevant even where the litigant is genuinely motivated.
3. Discretion. The court adopted the approach in Attorney General v Barker [2001] 1 FLR 759: the court must assess where the balance of justice lies, weighing the citizen’s right to invoke the courts against the need to protect others and preserve judicial resources. The drastic nature of the restriction did not prevent an order where continued litigation made it necessary.
4. Exercise of discretion. The defendants’ limited successes did not outweigh the scale and character of their unsuccessful litigation. The leave requirement preserves access to meritorious claims because applications for leave are to be examined carefully. The order would not prejudice the determination of proceedings in which the defendants were respondents, which would continue to be decided on their evidence and merits.
5. The Attorney General’s application was granted and civil proceedings orders were made against both defendants. There was no order as to costs, including costs thrown away by the earlier adjournment. Permission to appeal was refused because an appeal had no real prospect of success.