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

The Attorney General sought an all‑proceedings order under section 42 of the Senior Courts Act 1981 against Mr Mark Hardy. The court found that Mr Hardy had habitually and persistently and without reasonable ground instituted vexatious civil proceedings, made vexatious applications in civil proceedings and instituted vexatious prosecutions. The Part 8 procedure was appropriate for the section 42 application. The court refused a number of preliminary requests from Mr Hardy (including an order for a special advocate, cross‑examination of government witnesses and permission to pursue his counterclaim) and concluded that Article 6 issues did not preclude a section 42 order where leave remains available under section 42(3)/(3A).

As a result the court decided to make an all‑proceedings order limited to three years and to include "Vaidya" terms preventing Mr Hardy from acting as a representative or McKenzie friend; costs were awarded to the Attorney General.

Background and parties: His Majesty's Attorney General applied under section 42 of the Senior Courts Act 1981 for an order against Mr Mark Hardy, who has an extensive history of litigation arising from his bankruptcy and company insolvencies. HMAG sought a three year all‑proceedings order including terms preventing Mr Hardy acting as a representative or McKenzie friend (so called "Vaidya" terms).

Nature of the application: The Attorney General applied for a civil‑, criminal‑ and all‑proceedings order under s.42, alleging habitual, persistent and unreasonable institution of vexatious proceedings, applications and prosecutions. Mr Hardy denied the allegation, filed a defence and an unsupported counterclaim, and advanced multiple preliminary applications including a request for a special advocate, cross‑examination of government witnesses and a leapfrog/case stated to the Court of Appeal or Supreme Court.

Issues framed by the court:

• Whether the Part 8 procedure was appropriate for a s.42 application;
• Whether the statutory threshold in section 42 was satisfied (habitual, persistent and without reasonable ground conduct);
• Whether Article 6 and other procedural protections required appointment of a special advocate or otherwise prevented the making of the order;
• Discretionary questions as to the form, duration and scope of any order, including whether to include Vaidya terms.

Reasoning and decision: The court held that Part 8 was properly invoked. It rejected Mr Hardy's requests to adduce large amounts of new evidence, to cross‑examine the Government Legal Department witnesses, and to appoint a special advocate; it also refused permission to pursue the counterclaim in the Part 8 proceedings. The court analysed the cumulative effect of numerous prior judgments and decisions in which Mr Hardy had pursued litigation and/or prosecutorial steps characterised by the judges hearing them as without reasonable ground, abusive or pursued for collateral purposes. The court applied authorities on the scope and limits of s.42 and the compatibility of such orders with Article 6 ECHR, concluding that a s.42 order operates as a filter rather than an absolute bar because leave can be given under s.42(3)/(3A). On that basis the statutory preconditions were satisfied and a proportionate exercise of discretion warranted an all‑proceedings order limited to three years with Vaidya terms. The Attorney General was awarded costs in the sum claimed.

The application was allowed. The court concluded that Mr Hardy had habitually and persistently and without reasonable ground instituted vexatious civil proceedings, made vexatious applications and instituted vexatious prosecutions. On that basis an all‑proceedings order was made under section 42 of the Senior Courts Act 1981 for a period of three years, including Vaidya terms preventing Mr Hardy from acting as a representative or McKenzie friend. The court refused Mr Hardy's requests for a special advocate, to cross‑examine named government witnesses, and permission to pursue his counterclaim; the court found the restrictions compatible with Article 6 because leave remains available under section 42(3)/(3A).