Ewing v London Borough of Camden

A prospective defendant may be heard on a vexatious litigant’s application for permission under section 42(3) of the Senior Courts Act 1981 where service is directed under the relevant practice direction. The practice direction validly altered the former procedural position established under the Rules of the Supreme Court. It did not conflict with the statute or affect substantive rights. The High Court’s inherent power to issue practice directions, together with their recognition in the Civil Procedure Act 1997, supported that conclusion. The prospective defendant’s participation was also consistent with the overriding objective, since adversarial submissions could identify claims which appeared arguable but lacked real substance.

The claimant, who was subject to a civil proceedings order under section 42 of the Senior Courts Act 1981, sought permission to bring judicial review proceedings concerning changes to the terms governing mutual exchanges of council homes. The defendant served a skeleton argument pursuant to directions given for the permission hearing.

The claimant argued that the prospective defendant had no standing to make submissions. The preliminary issue was whether the practice direction supplementing CPR Part 3 had validly changed the earlier procedural position under Jones v Vans Colina, under which a proposed defendant was not a party to a section 42(3) application and could not challenge the grant of permission.

1. Standing. The defendant, as prospective defendant to the proceedings for which permission was sought, had locus standi to appear and make submissions on the section 42(3) application. The court therefore heard the defendant’s argument and ruled against the claimant on standing.
2. Effect of the practice direction. Paragraphs 7.7 and 7.9 of the practice direction had changed the former procedural position established by Jones v Vans Colina. They permitted service on a person against whom the vexatious litigant sought to proceed and permitted that person to challenge a grant of permission if notice had not been given. The practice direction was procedural only and did not conflict with section 42 or remove any substantive right.
3. Validity. The High Court had inherent power, through its Heads of Division, to make practice directions. Practice directions were also expressly recognised by the Civil Procedure Act 1997. The fact that the change appeared in a practice direction rather than a rule did not make it ultra vires. CPR 3.1(1), CPR 23.10 and CPR 40.9 were consistent with that conclusion.
4. Authority. The judge adopted the reasoning of Davis J in Re Ewing and followed the binding decision of Laws LJ in Ewing v The Security Service. He also approved the observations of Sir Richard Scott VC and Robert Walker LJ in Johnson v Valks that the practice direction had reversed the position in Jones v Vans Colina.
5. The participation of a prospective defendant was consistent with the overriding objective. The Attorney-General might not identify every defect in an apparently arguable claim, whereas early adversarial submissions could prevent futile and costly proceedings. The substantive challenge had not yet been adjudicated.

The judgment was a first-instance determination of a preliminary standing issue in an application for permission under section 42(3) of the Senior Courts Act 1981. No appellate history is stated.