His Majesty's Attorney General for England and Wales v Mark Gregory Hardy

An all-proceedings order may be made where a litigant has habitually and persistently instituted vexatious civil or criminal proceedings, or made vexatious applications, without reasonable ground. The court assesses the cumulative effect of the litigant’s activities on opponents and the administration of justice. The statutory filter regulates access to the courts; it does not remove the essence of the Article 6 right, because permission remains available for proceedings that are not abusive and have reasonable grounds. Bankruptcy and insolvency proceedings conducted in civil courts fall within the scope of the jurisdiction. The court may impose an order for a specified period and may prohibit the litigant from acting as a representative or McKenzie friend where the litigation history justifies that restriction.

The Attorney General applied under section 42 of the Senior Courts Act 1981 for a three-year all-proceedings order against Mark Hardy. The application relied on his extensive history of civil proceedings, applications and private prosecutions, many of which had been dismissed, struck out or criticised as abusive, unmeritorious or pursued for collateral purposes.

Mr Hardy challenged the use of the CPR Part 8 procedure, sought permission to pursue a counterclaim, requested cross-examination of witnesses, and invited the court to appoint an Advocate to the Court or facilitate a leapfrog appeal. He also argued that bankruptcy proceedings were outside section 42 and that the restriction would breach Article 6. The central issues were whether the statutory precondition was satisfied and, if so, whether an all-proceedings order, including Vaidya terms, should be made.

1. Procedure. The CPR Part 8 procedure was appropriate because the application raised no substantial dispute of fact requiring trial. The court refused permission for Mr Hardy’s counterclaim, refused cross-examination, and declined to appoint an Advocate to the Court or facilitate a leapfrog appeal. The material sought to be introduced largely re-argued earlier proceedings and judgments.
2. Scope of section 42. Bankruptcy and insolvency proceedings are civil litigation conducted in civil courts and may fall within section 42. The fact that the Senior Courts Act 1981 preceded the Insolvency Act 1986 did not alter that conclusion. The 1981 Act is an always-speaking statute.
3. Statutory precondition. The court considered the cumulative effect of Mr Hardy’s litigation activity. The relevant question was not whether every proceeding was without reasonable ground, but whether the overall pattern demonstrated habitual and persistent institution of vexatious proceedings, applications and prosecutions without reasonable ground. The statutory precondition was satisfied.
4. Meaning of vexatious conduct. The court applied the approach in AG v Barker: proceedings may be vexatious where they have little or no legal basis, impose disproportionate inconvenience, harassment and expense, and abuse the court process by pursuing a significantly different purpose from its ordinary use.
5. Article 6 and discretion. A section 42 order pursues the legitimate aim of protecting litigants and judicial resources. It is proportionate because the order operates as a filter, not an absolute bar: leave remains available where the proposed proceedings are not an abuse and have reasonable grounds. Mr Hardy’s bankruptcy and impecuniosity did not justify withholding the order.
6. Form and duration. The court included Vaidya terms preventing Mr Hardy from acting as a representative or McKenzie friend. Although an indefinite order would have been justified, the order was limited to three years because of its draconian nature. Costs followed the event in the sum claimed.

First-instance application under section 42 of the Senior Courts Act 1981. No earlier decision in the present proceedings is stated.