Benmusa (No 3), Re

Repeated applications that are incoherent, abusive or plainly unsustainable may be struck out. Nevertheless, constitutional limits govern restrictions on access to the court. Court staff cannot refuse to issue process without judicial direction, and a judge cannot impose an absolute bar preventing a litigant from applying to the court. Even a vexatious litigant, or a person subject to a civil restraint or Grepe v Loam order, retains the ability to seek permission to bring proceedings. The court may instead require future applications to be placed before a judge before issue. The judge may then direct that an application be returned unissued or issued for consideration in the ordinary way.

Ms Benmusa made two further paper applications seeking to unseal the will of the late Princess Margaret. They followed two earlier applications which had been struck out in Re Benmusa [2017] EWHC 494 (Fam) and Re Benmusa (No 2) [2017] EWHC 785 (Fam). The latest applications alternatively alleged that a death certificate previously relied upon was fake or involved fraud. The President of the Family Division considered whether the applications should be struck out and what procedural direction could lawfully be made to prevent further nonsensical applications from consuming court resources.

1. The two applications were struck out. They were founded on essentially the same assertions as the previous applications, while repudiating the document on which Ms Benmusa had previously relied.
2. There are important constitutional limits on controlling access to the court. Court staff cannot refuse to issue process on their own authority; that decision must be made by a judge. A judge cannot make an order absolutely barring a litigant from access to the court.
3. Those limits apply even where the litigant is declared vexatious or is subject to a civil restraint order or a Grepe v Loam order, reported at (1887) 37 ChD 168. Such a litigant retains the right to apply to a judge for permission to bring proceedings.
4. The court could, however, adopt a lawful pre-issue control mechanism. Any further application from Ms Benmusa was to be placed before the President of the Family Division before issue. The President could direct that it be returned unissued, or direct that it be issued and then considered in the usual way.

The judgment describes two earlier applications by the same applicant, struck out in Re Benmusa [2017] EWHC 494 (Fam) and Re Benmusa (No 2) [2017] EWHC 785 (Fam). The present applications were dealt with at first instance on paper.