Ewing v Director of Public Prosecutions

For the purposes of Supreme Court Act 1981, an application for permission to apply for judicial review is a distinct preliminary proceeding. It is a civil proceeding, even where the decision challenged concerns a criminal cause or matter.

The statutory question is the character of the proceedings at the stage when they are instituted, not the subject matter of the decision under challenge. A vexatious litigant subject to a civil proceedings order must therefore obtain leave under section 42 before seeking permission to bring such judicial review proceedings. This construction gives effect to the protective purpose of section 42 and avoids an unwarranted gap in its scope.

Terence Patrick Ewing, a vexatious litigant subject to a civil proceedings order under section 42 of the Supreme Court Act 1981, sought a declaration that he did not require leave to apply for judicial review.

The proposed judicial review challenged the Director of Public Prosecutions’ decision to discontinue a private prosecution brought by Mr Ewing. He argued that the underlying decision related to a criminal cause or matter, so the judicial review proceedings were criminal rather than civil proceedings. The central issue was whether the preliminary application for permission to apply for judicial review fell within the civil proceedings restriction in section 42.

1. The application was dismissed. Mr Ewing required leave under section 42 of the Supreme Court Act 1981 before making the application for permission to apply for judicial review.
2. Section 42 regulates the institution of proceedings and the active making of applications. It does not define civil and criminal proceedings by reference to the underlying subject matter. The distinction between a criminal cause or matter and a civil proceeding is relevant to provisions governing appeals, such as section 18(1)(a), but does not answer the question posed by section 42.
3. An application for permission to apply for judicial review is a separate preliminary proceeding. The authorities under Order 53 and CPR Part 54 establish that it is capable of being a civil proceeding for section 42 purposes. Its character is not changed because the decision which the claimant seeks to challenge concerns criminal proceedings.
4. This conclusion is supported by the statutory purpose. Section 42 is intended to prevent vexatious litigants from repeatedly invoking the coercive process of the court without reasonable grounds, while preserving access where reasonable grounds exist. Treating criminal-related judicial review as outside the section would create a substantial gap, including for litigants subject to an all proceedings order.
5. The court accepted that section 42 does not control every proceeding. An appeal by way of case stated under section 111(1) of the Magistrates’ Courts Act 1980 is outside the relevant restriction. That limited example did not alter the characterisation of an application for permission to apply for judicial review. Such judicial review following a magistrates’ conviction would in any event be rare and would ordinarily be subject to the statutory appellate routes.
6. Mr Justice Blake agreed with Lord Justice Moses and added that the different appeal routes for judicial review involving a criminal cause or matter could not determine the section 42 question. Permission requirements did not transform the long-established treatment of judicial review applications as proceedings within section 42.

Permission to appeal was refused.

First-instance decision in the Administrative Court. The judgment records earlier proceedings involving Mr Ewing, including The Queen on the application of Ewing v Davis, [2007] EWHC 1730, and earlier judicial review decisions cited as authorities. The present application for a declaration was dismissed, and permission to appeal was refused.