Mathew v HM Attorney General

The court may vary or discharge an order under Supreme Court Act 1981, section 42, where circumstances have materially changed. An application to continue such an order must receive intense scrutiny, including consideration of its age, present necessity and proportionality. The applicant bears the burden of showing that continuation is no longer necessary. Access to the courts is not absolute, and requiring a person declared vexatious to obtain permission before litigating may remain proportionate. The Attorney General has no continuing legal duty to monitor each order and apply for its discharge. The court may consider the applicant’s current conduct and evidence when assessing whether the risk underlying the order has ended.

The applicant had been declared a vexatious litigant by an all-proceedings order made in 1991 under section 42 of the Supreme Court Act 1981. The order required him to obtain permission before bringing proceedings. Earlier attempts to challenge the order had failed.

In 2012 he applied to vary or discharge it. Permission was granted on the understanding that the estate-related litigation was settled and no further proceedings were intended. His subsequent claim nevertheless challenged the original order, alleged breaches of Convention rights and sought damages. The central issue was whether the circumstances arising since 1991 made continuation of the order unnecessary or disproportionate.

1. The application was dismissed. The burden lay on the applicant to satisfy the court that, by reason of events since the order was made, it was no longer necessary for the order to continue.

2. Following HM Attorney General v Covey [2001] EWCA Civ 254, the court accepted that it possessed an inherent jurisdiction to vary or discharge a section 42 order in entirely new circumstances. The continuing operation of the order required careful and intense scrutiny. The fact that the order was of indefinite duration did not itself make it unlawful or disproportionate.

3. The engagement of Articles 6 and 8 required a more intense review of continuation than might otherwise have been undertaken under common-law principles. It did not, however, convert the order into a breach of Convention rights. The court applied the reasoning in Ebert v Official Receiver [2002] 1 WLR 320: access to a court is not absolute, and the statutory scheme protects judicial control, requires detailed inquiry and permits reconsideration in light of new facts and complaints.

4. The Attorney General had no legal obligation to monitor the order periodically and apply for its discharge. The proposed duty was unarguable because it would require the Attorney General to investigate the changing circumstances of every person subject to a section 42 order.

5. The court considered the order’s age, the long settlement of the estate and evidence of personal distress. Against that, the applicant continued to challenge the original decision, maintained beliefs suggesting that the underlying concerns had not disappeared and had come close to conducting litigation by proxy through a power of attorney. Those matters showed that the risk underlying the order remained. It was proportionate to require him to satisfy a court, on a case-by-case basis, that proposed litigation was justified and had a reasonable prospect of success.

First-instance decision. Earlier proceedings concerning the 1991 order are described in the judgment, but no appellate history of the present application is stated.