Bhamjee v Forsdick & Ors (No 2)

Introduction

On 14^th May 2003 this court heard and dismissed three applications by Mr Bhamjee for permission to appeal against an order made by Park J on 27^th January 2003 in relation to three actions he had brought: see Bhamjee v Forsdick [2003] EWCA Civ 799 (“Bhamjee (No 1)”). Two of these were first appeals, which the court dismissed as being “quite hopeless” (see paras 19 and 34 of the judgments). The other was a proposed second appeal, which the court categorised as not getting “within a hundred miles of identifying an important point of principle or practice or any other compelling reason why this court should entertain his application” (see paras 20 and 34). The court directed that in the context of the current applications a three-judge court should be convened in due course to consider whether it would be appropriate for the court to make any – and if so what – form of injunction to control Mr Bhamjee’s future activities.

After this hearing had been arranged the five barrister respondents themselves applied for an injunction against Mr Bhamjee along the lines of that approved by this court in Ebert v Venvil [2000] Ch 484 (see paras 27-28 below). We will consider that application in paragraphs 54-56 below.

The background to the court’s original direction is set out in paragraphs 22 to 31 of the judgment in Bhamjee (No 1). In short, the courts are facing very serious contemporary problems created by the activities of litigants like Mr Bhamjee who are bombarding them with applications which have no merit at all. Many of these litigants have no fees disincentive because they automatically qualify for fees exemption. The problem created by these hopeless applications is not only a serious financial one, for the reasons set out in paragraph 25 of the judgment in Bhamjee (No 1). It is also that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all. A further problem is created by the fact that these litigants are often without the means to pay any costs orders made against them, and the parties in whose favour such costs orders are made are disinclined to throw good money after bad by making them bankrupt, particularly as the vexatious conduct may spill over into the bankruptcy proceedings themselves.

We must stress that in many, if not most, of these cases the litigant in question has been seriously hurt by something that has happened to him in the past. He feels that he has been unfairly treated, and he cannot understand it when the courts are unwilling to give him the redress he seeks. Judges must, as always, listen to his case carefully and be astute to see whether there is any point of legal merit in what he is saying to them. And if they are unable to help him, they must give their reasons clearly, in language he will understand. In most cases, particularly after an unsuccessful appeal has been handled in the same way, that will be the end of the matter so far as the courts are concerned, even if the litigant’s sense of unfair treatment will often linger on. But in a tiny minority of cases he will not take “no” for an answer. He may start collateral litigation about the same subject matter. He may sue the judge. He may sue the lawyers on the other side. He may bombard the court in the same case with further applications and appeals. He may sue the Lord Chancellor, or the Home Secretary, or some other public authority whom he thinks may be legally liable for his misfortune. The recital of the facts in Bhamjee (No 1) contains a few of these features. It is with this very small category of litigants that this judgment is concerned.

This case is an important one because, when viewed from the perspective of its effect on the Court of Appeal alone, the nuisance which these activities represent for the judges, lawyers and staff of this court does not directly impinge on the other parties to the litigation in question. In Mr Bhamjee’s case, for instance, the reason is that in each of the seven unmeritorious applications he has made to the court in the last three years the court has refused to grant him permission to appeal, so that the proposed respondents have not been “vexed” by having to incur the expense of responding to a hopeless appeal.

This is the result of the significant changes in the “permission to appeal” requirements that have been made in recent years, culminating in the enactment of sections 54 and 55 of the Access to Justice Act 1999 and the implementation (on 2^nd May 2000) of CPR 52.3(1) and 52.13. The effect of these changes has been to put a significant new burden on the lawyers and staff of the Civil Appeals Office who have to ensure that the litigant’s bundles of papers are all in order for a permission application. In addition, a judge of the court has to set aside over an hour of his time in considering the papers, conducting a short hearing in court, and giving a brief reasoned judgment for dismissing an application which is devoid of any merit. The same considerations apply to judicial review applications in the Administrative Court, to which Mr Bhamjee has made a number of applications in the last two years, although in that jurisdiction there is a slightly greater encouragement to respondents to take part in the proceedings themselves at the permission stage (see CPR 54.8 and 54.9).

Vexatious litigation

The courts have traditionally described the bringing of hopeless actions and applications as “vexatious”, although this adjective no longer appears in the Civil Procedure Rules (compare RSC O18 R19(1)(b) with CPR 3.4(2)). In Attorney-General v Barker [2000] 1 FLR 759 Lord Bingham CJ, with whom Klevan J agreed, said (at para 19) that “vexatious” was a familiar term in legal parlance. He added:

“The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.”

In recent years the courts have become more conscious of the extent to which vexatious litigation represents a drain on the resources of the court itself, which of necessity are not infinite. There is a trace of this in the judgment of Staughton LJ in Attorney-General v Jones [1990] 1 WLR 859, 865C, when he explained why there must come a time when it is right for a court to exercise its power to make a civil proceedings order against a vexatious litigant. He said that there were at least two reasons:

“First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; secondly the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances and should not be squandered on those who do not.”

In Attorney-General v Ebert [2000] EWHC Admin 286 at [50] Laws LJ articulated this anxiety in the following terms:

“Mr Ebert’s vexatious proceedings have … been very damaging to the public interest; quite aside from the oppression they have inflicted on his adversaries. … The real vice here, apart from the vexing of Mr Ebert’s opponents, is that scarce and valuable judicial resources have been extravagantly wasted on barren and misconceived litigation, to the detriment of other litigants with real cases to try.”

Silber J, concurring, referred (at para 61) to “a totally unjustified use of judicial time”.

Hopeless applications for permission to apply for judicial review or for permission to appeal have in the past featured among the matters relied on by the Attorney-General when seeking a civil proceedings order under section 42 of the Supreme Court Act 1981. This appears, however, to be the first occasion on which a court has had to consider whether the totally unmeritorious waste of the resources of a court (whether in terms of staff, lawyer or judge time or in the expense involved in procuring necessary transcripts at public expense for a litigant without means) is itself sufficient to justify the granting of some form of injunctive relief. In order to address this question it is necessary to go back to first principles, both as to the inherent power of a court to protect its processes from abuse, and as to its ability, absent statutory authority or any explicit authority granted by the rules, to place fetters on a litigant’s ability to access the court in the event that he has abused the court’s process.

A court’s inherent powers

The power to protect its processes from abuse is vested in every court. The starting point is the judgment of Baron Alderson in Cocker v Tempest (1840-41) 7 M&W 501:

“[T]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion.”

Clear modern restatements of the principle are to be found in the extracts from the speeches of Lord Morris of Borth-y-Gest in Connelly v DPP [1964] AC 1254, 1301 and Lord Diplock in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909, 999 which Lord Woolf CJ quoted in Taylor v Lawrence [2002] EWCA Civ 90 at [52] – [53]; [2002] 3 WLR 640. In the former Lord Morris said that a court must enjoy the powers necessary to enable it to act effectively within its particular jurisdiction in order, among other things, to suppress any abuses of its process. In the latter Lord Diplock said that it would be conducive to legal clarity if the use of the two expressions, the inherent power and the inherent jurisdiction of the court, was confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice. The following year, in Hunter v Chief Constable of West Midland Police [1982] AC 529, 536, Lord Diplock said that the circumstances in which abuse of process can arise are very varied, and that it would be most unwise to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty to exercise this salutary power.

In AB & Others v John Wyeth & Brother Ltd [1997] 8 Med LR 57, 70 Brooke LJ drew three themes from a number of authorities on this topic. He said:

“The first is that the court has an inherent jurisdiction to step in and prevent its process being abused for the purpose of injustice, or in order to maintain its character as a court of justice. The second is that the court should be very slow to exercise this summary power (see also Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, per Lord Blackburn at p 221: ‘it should not be lightly done’). The third is that the category of case in which the court should be willing to exercise this power is almost by definition never closed.”

In Ebert v Venvil [2000] Ch 484 Lord Woolf MR showed at pp 495-496A how even the familiar statutory jurisdiction over vexatious litigants, which first saw the light of day in the Vexatious Actions Act 1896, developed out of the court’s earlier use of its inherent jurisdiction to control the conduct of such litigants. A reported example can be seen in In re Marie Anne Davies (1888) 21 QBD 241. In more recent years there have been a number of occasions, set out in the judgment of Brooke LJ in Attorney-General v Ebert [2001] EWHC Admin 695 at [30] – [32]; [2002] 2 All ER 789, in which the court has had recourse to its inherent jurisdiction when controlling the activities of litigants who have abused or attacked court staff, generally wasted the time of court staff, or misbehaved in court.

The court, therefore, has power to take appropriate action whenever it sees that its functions as a court of justice are being abused. The advent of the Civil Procedure Rules makes the nature of those functions more transparent. A court’s overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court’s resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit. In Chapter 9 of the report of the Review of the Court of Appeal (Civil Division) (September 1997), in a passage referring to the activities of litigants in person, the authors of the report say:

“Groundless appeals should not be brought or should be eliminated from the system at the earliest possible stage. Such appeals build up unrealistic expectations on the part of the appellant, are unfair to the respondent, cost all the parties money, and waste the time of the Court of Appeal.”

Protective measures: (i) Strasbourg jurisprudence

This court, therefore, like any court, has an inherent jurisdiction to protect its processes from abuses of this kind. The next question is to determine what measures are appropriate for this purpose. It is now well settled both at common law and under Strasbourg jurisprudence that a court has power to regulate its affairs in such a way that its processes are not abused. The governing principles are set out clearly in the judgments of the European Court of Human Rights in Golder v UK (A/18) 1 EHRR 524 at paras 36 and 38-39; Ashingdane v UK (A/93) (1985) 7 EHRR 528 at para 57; and Tolstoy-Miloslavsky v UK (A/323) (1995) 20 EHRR 442 at para 59. These cases proclaim the message that the right of access to the courts may be subject to limitations in the form of regulation by the state, so long as two conditions are satisfied:

(i)

the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired;

(ii)

a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

In H v UK (1985) 45 D&R 281 the European Commission of Human Rights applied these principles when it decided that an order refusing the applicant leave to bring an action by virtue of an earlier order made against him under the Vexatious Actions (Scotland) Act 1898 did not constitute an arguable violation of his Convention rights. Indeed, it said (at p 285) that:

“some form of regulation of access to the court is necessary in the interests of the proper administration of justice and must therefore be regarded as a legitimate aim.”

In Ebert v Venvil Lord Woolf MR said at p 497G-H:

“[ECHR] Article 6 does no more than reflect the approach of the common law indicated by Laws J in R v Lord Chancellor ex p Witham [1998] QB 575. As long as the inherent power is exercised only where it is appropriate for it to be exercised, no contravention of article 6 or common law principle is involved.”

Over the last 100 years the English civil courts have traditionally had two weapons in their armoury for the purpose of protecting their processes from the abuse which vexatious litigation represents, and it is worth examining the salient features of each of these weapons in turn.

Protective measures: (ii) Civil proceedings orders

The first is a civil proceedings order made under section 42 of the Supreme Court Act 1981 (“a section 42 order”). It has the following features:

(i)

An application for an order may only be made on the authority of the Attorney-General (or the Solicitor-General acting on his behalf);

(ii)

An order may only be made by a Divisional Court of the Queen’s Bench Division;

(iii)

It is necessary to show not only that the person in question has instituted civil proceedings or made applications in civil proceedings which can properly be stigmatised as “vexatious”. It must also be shown that he has acted in one or other of these ways “habitually and persistently and without any reasonable ground”;

(iv)

An order will remain in force indefinitely unless it provides that it is to cease to have effect at the end of a specified period. (In Attorney-General v Covey; Attorney-General v Matthews [2001] EWCA Civ 254 at [64] Lord Woolf CJ said that the court always has a jurisdiction to vary orders which have been made in the light of entirely new conditions);

(v)

A copy of the order is published in the London Gazette;

(vi)

Once an order is made, the vexatious litigant may not institute or continue or make an application in any civil proceedings unless a High Court judge is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application. There is an oral hearing before the judge for this purpose unless the judge grants permission without a hearing or considers that the application is a substantial repetition of one which has already been refused;

(vii)

Although the original civil proceedings order is subject to appeal (if permission to appeal is granted) the decisions of a High Court judge under (vi) above are not;

(viii)

Once the Divisional Court has made a civil proceedings order, the order regulates the litigant’s right of access not only to the High Court but also to the Court of Appeal and the county court.

We derive these propositions from section 42 of the Supreme Court Act 1981 (“the 1981 Act”); section 1 of the Law Officers Act 1997; RSC O95 R15(1); and the Practice Direction to CPR 3.4, para 5.

Long before the courts of this country began to study the effect of ECHR jurisprudence the House of Lords made it clear that the purpose of what was then section 51 of the Supreme Court of Judicature (Consolidation) Act 1925, as amended by section 1 of the Supreme Court of Judicature (Amendment) Act 1959, was not to interfere with a substantive right to bring or continue proceedings which were an abuse of the process of the court, because no such right existed. In Attorney-General v Vernazza [1960] AC 965 Lord Denning made this clear at p 977:

“The courts of this country have an inherent power to ‘prevent the abuse of legal machinery which would occur, if for no possible benefit the defendants are to be dragged through litigation which must be long and expensive’, see Willis v Earl Beauchamp (1886) 11 PD 59, 63 by Bowen LJ; and when the courts of this country exercise this power, they are not depriving a man of a vested right. They are only exercising a control over their own procedure. No man, let alone a vexatious litigant, has a vested right to bring or continue proceedings which are an abuse of the process of the court.”

In Attorney-General v Barker [2000] 1 FLR 759 at para 22 Lord Bingham CJ gave this explanation of the words “habitually and persistently” in section 42(1) of the 1981 Act:

“The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of revisiting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who, if they were to be sued at all should be joined in the same action; that the claimant automatically challenges every adverse decision on appeal, and that the claimant refuses to take any notice of or give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop.”

In Attorney-General v Matthews, after quoting this passage, Lord Woolf CJ said (at para 61):

“… [In] deciding whether the conditions set out in section 42 are met, it is necessary to look at the whole picture. It is the cumulative effect of Dr Matthews’ activities, both against the individuals who are drawn into the proceedings and on the administration of justice generally that has to be taken into account.”

A section 42 order has been described as a draconian order. It covers all the litigation and all the applications a vexatious litigant may wish to bring, and if a High Court judge refuses permission in relation to any attempt the litigant may wish to make to bring a matter to the attention of a court that is the end of the matter. It involves the publication of the litigant’s name on a list which receives widespread circulation, and although some recent orders have been made for a fixed period of time, by January 2000 only one ten-year order and one 15-year order had fallen into this category (see Attorney-General v Ebert (COT 7^th July 2000) per Silber J at paras 55-57). It is therefore a form of relief which has a long term effect.

Protective measures: (iii) Grepe v Loam orders

In Ebert v Venvil Lord Woolf MR considered at p 493D-G the nature of the interface between this statutory jurisdiction and the inherent jurisdiction of the court to prevent abuses of its process which co-exists with it. In discussing the Grepe v Loam jurisdiction, to which we will now turn, Lord Woolf said:

“This is one of the situations where it is accepted that notwithstanding the intervention of Parliament an inherent jurisdiction remains alongside the statutory jurisdiction. This does not mean that intervention of Parliament may not have cut down the inherent jurisdiction of the court. If there was an application for an order of the same width as the statutory jurisdiction, the court could only appropriately deal with such an application under the statutory jurisdiction. The inherent jurisdiction to make an order is now more restricted. The question is how much more restricted.”

Although Grepe v Loam orders were customarily made in the Chancery Division, it is now well settled that any court, including a county court, may make such an order in the exercise of its inherent jurisdiction to protect its process from abuse (for the jurisdiction of the county court, see Ebert v Venvil per Lord Woolf MR at p 490G). The salient features of the traditional Grepe v Loam order were that:

(i)

It could be made by any judge of any court of his own motion. The jurisdiction was not vested in the Divisional Court of the Queen’s Bench Division alone, and the Attorney-General did not have to be involved.

(ii)

The order barred the litigant in question from making any further applications in the matter without first obtaining the leave of the court.

(iii)

If an application was made without the leave of the court being obtained, there was no need for the other side to attend, and the application would be dismissed without being heard.

(iv)

The order was susceptible to appeal, if permission to appeal was granted.

(v)

The order was not published in the London Gazette.

Protective measures: (iv) An extended Grepe v Loam order

The litigious activities of Mr Ebert led Neuberger J to make an extended Grepe v Loam order in his case, and this received the approval of this court in Ebert v Venvil. The additional features of this extended order were that:

(i)

It extended not only to applications in the current proceedings but also to taking any steps (including the issuing of new proceedings) in any division of the High Court or in any county court against the defendant bank or its legal representatives in or arising out of or concerning a wide range of matters defined in the order without the leave of a judge being first obtained;

(ii)

Any application for leave had to be made without notice in writing to one of two named judges of the Chancery Division and would be dealt with on paper;

(iii)

Six clear working days’ written notice of any such application had to be given to the bank’s solicitors, and if they replied in writing their response had to accompany the application.

In dismissing Mr Ebert’s appeal against that order Lord Woolf MR, after considering two Commonwealth decisions to contrary effect, said in Ebert v Venvil at pp 496F-G and 497C-D:

“We can see no reason why absent the intervention of a statute cutting down the jurisdiction, [the inherent] jurisdiction should apply only in relation to existing proceedings and not to vexatious proceedings which are manifestly threatened but not yet initiated …

The court undoubtedly has the power to stay or strike out vexatious proceedings when they are commenced under its inherent power. We can see no reason in principle why it should not also, in accord with the general approach to the granting of quia timet injunctions, exercise that power to prevent the serious loss that anticipated but unidentified proceedings could cause the defendants to those proceedings.”

The extended Grepe v Loam order contained the novelty that the High Court was now able to restrict the litigant’s activities in the county court (so long as they referred to the same matter). Lord Woolf’s justification for this extended jurisdiction is to be found in his judgment in Ebert v Venvil [2000] Ch 498A-E. Other novelties were that all Mr Ebert’s applications were reserved to one or other of two named judges in the Chancery Division (and, in due course, to only one), and that they might be disposed of on paper. It appears from Laws LJ’s judgment in Attorney-General v Ebert (at para 33) that two judges of that division later felt constrained to make a further order to the effect that Mr Ebert be not allowed to make applications under the Grepe v Loam order more frequently than once every two months, unless he could demonstrate that a more urgent application was called for.

Protective measures: (v) An exceptional case

In the event the Attorney-General was constrained to seek an even more stringent order restraining this particular litigant. The only feature of the later judgment of the Divisional Court which needs to be noted in the present context is at [2001] EWHC Admin 695 at [35] [2002] 2 All ER 789, where Brooke LJ said:

“We accept [the submission of the advocate to the court] that the court’s supervisory role now extends beyond the mere regulation of litigation and of litigants who have submitted themselves to the compulsory jurisdiction of the court. It includes the regulation of the manner in which the court process may in general be utilised. It is of course well established that the High Court may, in appropriate circumstances, grant an injunction to restrain an anticipated interference with the administration of justice, amounting to a contempt (Attorney-General v Times Newspapers Ltd [1974] AC 273, 293G-294A, 306B). The advent of the Civil Procedure Rules only serves to bolster the principle that in the exercise of its inherent jurisdiction the court has the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in a completely obsessive pursuit of their own litigation, taking it forward by one unmeritorious application after another and insisting that they should be afforded priority over other litigants.”

In paragraph 39 a distinction was made between Mr Ebert’s practice of making innumerable applications (which could be kept under control by other techniques) and the matters set out in that judgment which amounted to disturbances of the processes of the court. (Those disturbances were described in paragraphs 12 to 18 of the judgment).

Protective measures: (vi) The principles

In Taylor v Lawrence [2002] EWCA Civ 90 at [56]; [2003] QB 528 this court, acting within its inherent jurisdiction, created a new procedure for those seeking to reopen a decision of the court in an exceptional case. This was to be an all paper procedure:

“The application will … be considered on paper and only allowed to proceed if after the paper application this court so directs. Unless the court so directs, there will be no right to an oral hearing of the application.”

It is therefore well established on authority that:

(i)

This court, like any court, has an inherent jurisdiction to protect its process from abuse;

(ii)

The categories of abuse of process will never be closed;

(iii)

No litigant has any substantive right to trouble the court with litigation which represents an abuse of its process;

(iv)

So long as the very essence of a litigant’s right to access the court is not extinguished a court has a right to regulate its processes as it thinks fit (absent any statute or rule or practice direction to contrary effect) so long as its remedies are proportionate to the identified abuse (whether it is existing or threatened);

(v)

One way in which a court may legitimately regulate its processes is by prescribing a procedure to be conducted entirely in writing.

So far as the last of these matters is concerned, if a litigant persistently makes applications or institutes actions that are devoid of merit, then by his conduct he will have disentitled himself to the hearing that would otherwise be available as of right. We know of no reasonable suggestion that the equivalent procedures in the House of Lords (for which see the 2003 White Book, vol 2, p 1161, paras 4.5-4.6) or the European Court of Human Rights itself are not ECHR compliant.

The appropriate range of remedies against abuse of process

Having set out the relevant principles we turn now to consider the appropriate range of remedies for the nuisance caused to the courts by activities of the kind in which Mr Bhamjee has indulged. In this context we are very grateful to Mr Gott for the assistance he afforded to us as the advocate to the court. In what follows we must not be taken to be excluding the possibility that other forms of order may be made if the situation seems to demand it. For instance, it may on occasion be thought appropriate to direct that permission to make an application or to institute an action will only be considered if an advocate with higher court rights of audience considers there is merit in it, or that the requisite applications in the High Court should be made to a Master in the first instance. The possibilities are unlimited. What is important is that the remedy should always be proportionate to the mischief that needs remedying.

Quite apart from the familiar remedies available under CPR 3.4 there are now at least three techniques available to a court when concerned with actions or applications which are utterly devoid of merit:

(i)

It may make an order striking out the action or application of its own initiative under CPR 3.3;

(ii)

It may make a Grepe v Loam order (see para 26 above) to the effect that no further applications in that action may be issued without the permission of the court;

(iii)

It may make an extended Grepe v Loam order (see para 27 above), so that the range of activities covered by the order is extended to embrace the institution of separate actions concerned with the same subject matter.

If all these steps prove to be of no avail, then resort has to be made to the more severe restraints embodied in a section 42 order.

We will consider these three techniques in turn.

Striking out under CPR 3.3 and CPR 3.4

If a Part 7 or Part 8 claim form, or an application in pending proceedings, is filed in a court office which appears to be vexatious in character, the court staff should consult a member of the judiciary in order to ascertain whether he considers that this might be a case in which it would be appropriate to exercise his powers under CPR 3.3 to strike out the claim or application without troubling the other side (other than to notify them of the course the court is taking). If he decides to take this course and he considers that the claim or application is totally devoid of merit, his order must record that it has been struck out because it is totally devoid of merit. It is desirable that a record can be drawn up of orders of this type both at a local level and on a national basis. If an order is made for the same reason under CPR 3.4, a similar procedure should be followed. Unless a more stringent form of restraint order has been made in the case of the particular litigant, a hearing must be arranged, if the litigant requests it, both at first instance and on any application for permission to appeal.

A Grepe v Loam order (a civil restraint order)

In the same way that the names “Mareva injunction” and “Anton Piller order” have now receded into history, we consider the time has come for a more modern name to be given to the Grepe v Loam order. In this judgment we will use the expression “civil restraint order” by way of analogy with the well-established civil proceedings order (see para 20 above). The Rules Committees may prefer to adopt a different expression in due course. We have seen (see para 26 above) how a civil restraint order may be made at any level of court and by any level of judge. In its simple form it is only apt to prohibit the issue of further applications within a single set of proceedings without the permission of a judge. A civil restraint order is likely to be appropriate when the litigant’s conduct has the hallmark of one who is content to indulge in a course of conduct which evidences an obsessive resort to litigation and a disregard of the need to have reasonable grounds for making an application to the court. Normally we would not expect a civil restraint order to be made until after the litigant has made a number of applications in a single set of proceedings all of which have been dismissed because they were totally devoid of merit. The characteristics of “vexatious” conduct set out by Lord Bingham CJ in his judgment in Barker (see para 7 above) may be a useful indicator of the need for a civil restraint order.

Because the effect of a civil restraint order is limited to the particular proceedings in which it is made, it will ordinarily remain in effect for the duration of the proceedings unless a judge subsequently considers it appropriate to set the order aside. The order will identify the judge to whom the necessary applications should be made.

An extended Grepe v Loam order (extended civil restraint order)

Because the nuisance represented by vexatious litigants is steadily increasing we consider that the courts should now be more willing to make extended civil restraint orders of the type approved by this court in Ebert v Venvil (see paras 26 and 27 above). The Court of Appeal may make such an order, if appropriate, restraining all such activity in the Court of Appeal, in any division of the High Court, and in any county court. A High Court judge may make an order restraining the litigant in any division of the High Court or in any county court. If a Master or a district judge in a district registry of the High Court considers that an extended civil restraint order may be desirable he should transfer the relevant proceedings to a High Court judge for consideration as to whether the order should be made. At county court level such an order should only be made by a designated civil judge or his appointed deputy, and must be restricted to the control of litigious activity within his designated county court districts. A district judge should transfer the proceedings to his designated civil judge if he considers that an extended civil restraint order may be called for. No doubt similar arrangements will be made in connection with family proceedings in the county court in due course, because the nuisance (and the need for an appropriate remedy) is identical, although in that jurisdiction judges already possess the statutory power available to them in section 91(14) of the Children Act 1989.

An extended civil restraint order will identify the judge to whom written applications for the requisite permission should be made. It should be made for a period not exceeding two years. By the time the order comes to be made the litigant for whom the further restraint has been adjudged necessary will have exhibited not only the hallmarks of vexatiousness (see para 7 above) but also the hallmarks of persistent vexatiousness (see para 22 above). We do not include the word “habitual” among the necessary criteria for an extended civil restraint order, but there has to be an element of persistence in the irrational refusal to take “no” for an answer before an order of this type can be made. The duration of the order may have to be extended if this is considered appropriate, but it should not be extended for a period greater than two years on any given occasion.

A new general civil restraint order

The courts’ experience now shows that an even wider form of order may be necessary for a particularly rare type of litigant. A civil restraint order and an extended civil restraint order can only restrain the litigant in the context of the litigation he is currently conducting and other litigation to like effect. In paragraph 28 above we have recited the passage in Lord Woolf’s judgment in Ebert v Venvil in which he explains the basis on which a judge may make an order with an effect wider than the particular proceedings in which he is engaged.

It is now clear that it may be necessary, because a litigant’s vexatious activities are proving to be such a drain on the resources of a court, for a judge of the court to make an order restraining him from commencing any action or making any application in that court without the prior permission of the court. Any application for permission must then be made in writing and will be dealt with in writing, as in the case of an extended order. The need for such a power partly stems from the nuisance identified by Laws LJ in Attorney-General v Ebert [2000] EWHC Admin 386 at [53] as justifying a section 42 order:

“…[A]ny argument as to whether a particular fresh process is or is not caught by an extant Grepe v Loam order is avoided … I attach no little importance to this aspect. If Mr Ebert’s obsession deepens, as … I fear it may, there is every possibility that he may seek to formulate proceedings in such a way as to raise at any rate an argument to the effect that he does not need Grepe v Loam leave.”

There is no need for such a power to be vested in the Court of Appeal since would-be appellants all require permission to appeal, and consideration is already being given by the Civil Procedure Rules Committee to a rule which would enable, among other things, a lord justice to dismiss an application for permission finally on paper if in his view it is totally devoid of merit. If he is of that opinion, he should be able to express his reasons for refusing permission in these terms without feeling himself obliged to give any longer reasons. It is clearly desirable that such a rule should be introduced.

At High Court level, a High Court judge may make an order generally restraining the litigant from instituting any action or making any application in the High Court without first obtaining the permission of an identified High Court judge in an all-paper proceeding. The purpose of such an order will be to protect the process of the High Court from abuse, so that the order may not be extended to include the county court. The order will identify the judge to whom any applications for the requisite permission should be made. A general civil restraint order should be made for a period not exceeding two years, unless subsequently extended.

A designated civil judge (or his appointed deputy) will also have power in an appropriate case to make a general civil restraint order limited in effect to his own county court districts to protect the process of those courts from abuse.

Restriction on the right of appeal

So far we have said nothing to preclude a litigant from exercising the right available to all litigants to seek permission to appeal against an order with which they are dissatisfied. We discussed with Mr Gott, however, whether the time might come when a court should be entitled to say that the nuisance was such that the decision of a judge to refuse the requisite permission should be final, and the litigant should not be entitled to appeal against that decision unless the judge himself gives permission to appeal. He urged us to be cautious about adopting such an approach, particularly in the early stages of a litigant’s vexatious behaviour. He did not dispute, however, that it would be within the inherent jurisdiction of the court to adopt such an approach if the situation was bad enough to warrant it, but he suggested that a step by step approach would be preferable, with a “no appeal” stipulation a remedy of last resort.

The governing Strasbourg principles are to be found in the Belgian Linguistics case 1 EHRR 252, 283 at para 9:

“… Article 6 of the Convention does not compel States to institute a system of appeal courts. A State which does set up such courts consequently goes beyond its obligations under Article 6. However it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions.”

In our judgment, if a litigant can be shown to have persistently abused the processes of the court by making applications and instituting proceedings which have been adjudged to be totally devoid of merit, despite earlier restraints, this is a legitimate reason why the time should come when he is limited to one chance of showing that the new action he wishes to bring, or the new application he wishes to make, is not totally devoid of merit. If it arguably has merit, then of course it should be permitted to proceed in the usual way. In Ebert v Official Receiver [2001] EWCA Civ 340; [2002] 1 WLR 320 this court held that the equivalent statutory procedure set out in section 42(4) of the 1981 Act was Convention-compliant: compare the approach of the European Commission on Human Rights in H v K (see para 17 above) which Buxton LJ cites in paragraph 8 of the judgment of the court in Ebert v Official Receiver.

We therefore consider that if a litigant subject to an extended civil restraint order or a general civil restraint order continues to make the requisite applications pursuant to the order which are customarily dismissed on the grounds that they are totally devoid of merit, a judge may, if he thinks fit, direct that if any further application is dismissed on the same grounds, the decision will be final. This type of order should only be made by a High Court judge or a designated civil judge (or his appointed deputy). Thereafter an appeal court will have no jurisdiction to grant permission to appeal against any subsequent refusal of permission any more than it has jurisdiction to grant permission to appeal against an order made by a judge exercising his statutory powers under section 42(4) of the 1981 Act. We consider that if a litigant persists in instituting proceedings or making applications which are totally devoid of merit despite all the earlier efforts the court has made to restrain his litigious activities and to protect its process from abuse, then this will be a legitimate reason why the court should eventually deprive him of the ordinary right to seek to appeal to a higher level of court. It will be sufficient if any subsequent applications are considered once only.

It will always be open to the other party or parties to litigation to apply for the orders described in Sections 12-15 of this judgment, or for similar orders, as indeed has happened in the present case (see Section 17 below). The Rules Committees may consider that it would be useful to prescribe the procedure to be followed, backed by an appropriate Practice Direction.

Summary

We will now summarise our guidance in these terms:

(1)

If a court at any level considers that an application or a claim or statement of case is totally devoid of merit it should say so, and this reason should appear on the face of the order (para 38);

(2)

It is desirable that a record should be kept of all such orders both at the court centre at which they were made and on a national basis (para 38);

(3)

Procedural judges should be alert to identify cases in which it may be appropriate for them to use their own initiative to consider whether to strike a claim out under CPR 3.3 as being totally devoid of merit before the proceedings are served on the other party (para 38);

(4)

A judge at any level of court should consider whether to make a civil restraint order if a litigant makes a number of vexatious applications in a single set of proceedings all of which have been dismissed as being totally devoid of merit. Such an order will restrain the litigant from making any further applications in those proceedings without first obtaining the permission of the court. Any application issued without such permission shall stand dismissed without the need for the other party to respond to it (paras 39-40);

(5)

If a litigant exhibits the hallmarks of persistently vexatious behaviour, a judge of the Court of Appeal or the High Court or a designated civil judge (or his appointed deputy) in the county court should consider whether to make an extended civil restraint order against him. This order, which should be made for a period not exceeding two years, will restrain the litigant from instituting proceedings or making applications in the courts identified in the order in or out of or concerning any matters involving or relating to or touching upon or leading to the proceedings in which it is made without the permission of a judge identified in the order. Any application for permission should be made on paper and will be dealt with on paper (paras 41-42);

(6)

If an extended civil restraint order is found not to provide the necessary curb on a litigant’s vexatious conduct, a judge of the High Court or a designated civil judge (or his deputy) in the county court should consider whether the time has come to make a general civil restraint order against him. Such an order will have the same effect as an extended civil restraint order except that it will cover all proceedings and all applications in the High Court, or in the identified county court, as the case may be. It, too, may be made for a period not exceeding two years (paras 43-47);

(7)

If a litigant subject to an extended civil restraint order or a general civil restraint order continues to make applications pursuant to the relevant order which are dismissed as being totally devoid of merit, a High Court judge or a designated civil judge (or his deputy) should consider whether it is appropriate to make any subsequent refusals of permission final. Thereafter any subsequent refusal of permission on the grounds that the application is totally devoid of merit will not be susceptible of appeal unless the judge who refuses permission himself grants permission to appeal (paras 48-51).

(8)

The other party or parties to the litigation may apply for any of these restraint orders, and on such an application the court should make an order that is proportionate to the mischief complained of (para 52).

In conclusion, the nuisance described in Bhamjee (No 1) is now such that we consider that the time has come when the courts should make use of their inherent jurisdiction to control it. Strasbourg jurisprudence requires the responses of the courts to be proportionate, and we consider that the two year civil restraint orders of the type we have described in this judgment represent the kind of step by step process approved by Strasbourg jurisprudence which may ultimately end, if the vexatious litigant’s conduct is not only persistent but also habitual, in the making of a long term section 42 order. The inherent jurisdiction of the court has always existed side by side with its rule-derived jurisdiction (see now CPR 3.1(1)), and the Rules Committees will no doubt wish to consider in due course whether it would be desirable to exercise their rule-making powers in this regard. All we are doing in this judgment is to provide a modern incarnation of the protection described by Bowen LJ in Willis v Earl Beauchamp [1886] 11 PD 59 in these words:

“… [T]he rules … do not … deprive the court in any way of the inherent power which every court has to prevent the use of legal machinery which will occur, if for no possible benefit the defendants are to be dragged through litigation which must be long and expensive.”

Today it is also the resources of the courts themselves that require protection.

The respondents’ application

We turn now to consider the relief sought by the respondents. They asked the court to make what we have described above as an extended civil restraint order against Mr Bhamjee. It will be remembered that the respondents are five members of the Bar whose only involvement in Mr Bhamjee’s life has been to appear for the opposing party in legal proceedings and whose arguments have persuaded a court on a particular occasion (or occasions) that Mr Bhamjee’s application was totally devoid of merit. The history of these proceedings is set out in the judgment in Bhamjee (No 1) and we need not repeat it here. In a witness statement made in support of the application the respondents’ solicitor said:

“In a telephone conversation I had with Mr Bhamjee on Thursday 3 July Mr Bhamjee threatened to bring proceedings against (my firm) on the grounds that we have misled the court in some way. Any such claim would be groundless. Mr Bhamjee has also informed me that he intends to bring claims against at least eight further barristers.”

After we had heard argument from Mr Gott and Mr Nicol (who appeared for the respondents), Mr Bhamjee addressed the court. We stopped him after 20 minutes because he was not addressing any of the issues the court had been convened to consider. Indeed he condemned himself out of his own mouth. He seemed to think he had a right to petition to appeal to the House of Lords against the order made in Bhamjee (No 1) refusing him permission to appeal to this court. He paid no attention at all to the reasons given by this court as to why his actions against the five barristers were hopeless. Instead he evinced a wish to ascertain the addresses of Mr Nicol and Mr Gott so that he could join them, too, as parties to some legal proceedings or other.

We are satisfied that the grounds for an extended civil restraint order against Mr Bhamjee are amply made out. We consider that it would be best if this order is first policed by a master, with any appeal lying to a High Court judge. We will therefore make an order in these terms:

(1)

The Claimant is forbidden for a period of two years from the date of this order (whether personally or through any servant or agent) from making any further application or taking any steps (including for the avoidance of doubt the issuing of any new proceedings in whatever form) in the Court of Appeal, the High Court (which expression includes for the avoidance of doubt any division thereof, whether in the Royal Courts of Justice or in any District Registry), or in any County Court against the first five named Defendants and/or their legal or other representatives in or out of or concerning any matters involving or relating to or touching upon or leading to these proceedings without permission obtained in accordance with Paragraph (2) below;

(2)

If the Claimant wishes to apply for permission to make any further application, step, proceedings or any act as described in Paragraph (1) above, then an application for such permission must be made in writing to Master Bowman and the application will be dealt with on paper alone;

(3)

If the Claimant wishes to appeal any decision of Master Bowman made in accordance with Paragraph (2) above, he must seek permission from:

(a)

Master Bowman in accordance with the procedure set out in Paragraph (2) above (ie an application in writing to be dealt with on paper alone by Master Bowman); and thereafter

(b)

Park J, adopting the same procedure (ie an application in writing to be dealt with on paper alone by Park J) as set out in Paragraph (2) above.

For the avoidance of doubt no appeal and no application for permission to appeal will lie to the Court of Appeal from a decision of Park J or Master Bowman refusing permission to appeal.

(4)

Any amendment or discharge of this order can be made only by Park J. If the Claimant wishes to seek an amendment or variation he must first seek permission from Master Bowman to make any such application to Park J. Such an application for permission to make an application to Park J is to be dealt with in accordance with Paragraph (2) above (ie an application in writing to be dealt with on paper alone by Master Bowman) and will be subject to the procedure set out in Paragraph (3) above in respect of any application for permission to appeal from any decision of Master Bowman;

(5)

If any form of Claim Form, Statement of Case, Application Notice, Notice of Appeal, Petition or any other form of document which is within the scope of this order is served on or given to the first five named Defendants and/or their legal representatives without the said permission having been first obtained (which acts or any of them, for the avoidance of doubt, will constitute a breach of this order and a contempt of court on the part of the Claimant) that person shall not be required to appear and respond and the purported application/proceedings shall stand dismissed and struck out without having been heard;

(6)

The Claimant is not to apply for:

(a)

permission from Master Bowman in accordance with the procedure set out in Paragraph (2) above;

(b)

permission to appeal in accordance with the procedure set out in Paragraph (3) above;

without first giving notice in writing to Barlow Lyde & Gilbert six clear working days before any such application of the nature of the application and the grounds thereof, and if Barlow Lyde & Gilbert reply to such notice in writing (there being no obligation to do so) such response shall accompany any application made by the Claimant under Paragraph (2) and/or Paragraph (3) above;

(7)

In the event of the retirement, permanent indisposition or permanent unavailability of either Master Bowman and/or Park J, another Master and/or Judge of the Chancery Division may be assigned to this order by the Vice-Chancellor.

A penal notice should be incorporated in the order.

We were told that the Attorney-General will be applying in the near future for a section 42 order against Mr Bhamjee and that he is likely to seek interim relief in those proceedings. The order we are making today will stand notwithstanding any interim order the Divisional Court may hereafter make. Unless and until a final section 42 order is made we consider that our order provides more flexible and appropriate protection for these respondents and for the courts themselves than any interim order the Divisional Court may consider it has power to make.