His Majesty's Attorney General for England and Wales v Benjamin Gray

Under Senior Courts Act 1981, s 42, the court may make an all proceedings order where the statutory pattern of habitual and persistent vexatious civil proceedings, applications or prosecutions is established. Previous findings that proceedings were totally without merit or vexatious cannot be re-litigated in the s 42 application. The court must nevertheless exercise an independent discretion, balancing access to justice against protection of opponents and court resources, and assessing the risk of further vexatious activity. An order is a filter, not an absolute bar, because meritorious proceedings may proceed with leave. A restriction on court access is compatible with Article 6 where it pursues a legitimate aim and remains proportionate. Restrictions on communications with courts may be included where necessary to prevent further abuse.

The Attorney General applied under Senior Courts Act 1981, s 42, for an all proceedings order against Benjamin Gray. Civil restraint orders had been imposed on him almost continuously since 2009, and the evidence showed repeated civil claims, applications and private prosecutions which had been found totally without merit or vexatious.

Mr Gray challenged the court’s jurisdiction, the use of the CPR Part 8 procedure, the fairness and independence of the judges, the validity of earlier findings, and the compatibility of a s 42 order with Article 6. The central questions were whether the statutory preconditions were satisfied and, if so, whether an all proceedings order, together with restrictions on communications with HMCTS, was justified.

1. Jurisdiction and procedure. The application was properly brought under CPR Part 8. It did not require the court to resolve factual disputes underlying earlier judgments. Any procedural error would not displace the court’s primary jurisdiction under Senior Courts Act 1981, s 42, and could in any event be remedied under CPR 3.10.
2. Effect of earlier findings. Applying Attorney General v Jones, the court could not investigate whether earlier judges had reached correct conclusions on the merits. Findings that claims or applications were totally without merit were conclusive evidence of their vexatious nature for the purposes of the present application. The cumulative effect of the respondent’s activity was relevant to whether conduct had been habitual and persistent.
3. Statutory preconditions. The evidence established all three statutory categories in s 42(1): vexatious civil proceedings, vexatious applications in civil proceedings and vexatious prosecutions. The court was satisfied that the respondent’s conduct fell within the meaning of vexatiousness described in Attorney General v Barker.
4. Discretion and proportionality. The court balanced the citizen’s prima facie right to invoke the courts against the protection of opponents and the finite resources of the judicial system. The respondent’s stated intention to continue litigating previously determined matters, together with the failure of repeated civil restraint orders and costs orders to deter him, made a continuing restriction necessary. The order did not breach Article 6: it pursued the legitimate aims of protecting others and preserving court resources, while leaving access to justified proceedings through the leave mechanism. The reasoning in Covey and Matthews, drawing on Tolstoy Miloslavsky, was applied by analogy.
5. Form and scope of relief. An all proceedings order was appropriate because the respondent had pursued both civil and criminal proceedings without merit. The court declined to include Vaidya terms preventing him from acting as a McKenzie friend, because there was no evidence that he had done so or intended to do so. Following Millinder, restrictions on communications with HMCTS were a necessary adjunct to the order. The existing GCRO was discharged and replaced with an all proceedings order, including limits on communications concerning applications for leave.

First-instance decision. The judgment records no appeal from the present application.