Attorney General v Douglas

LORD JUSTICE MOSES: This is an application for permission to appeal against an order pursuant to Section 42 of the Supreme Court Act 1981, made by the Divisional Court on 8 June 2006. It is, as will be apparent from a reading of that judgment and as has been made clear to us today, an extremely sad case. The defendant to the proceedings brought by the Attorney General under Section 42, Paula Douglas, is an intelligent, clearly-spoken, persuasive young woman who is a law graduate. She brings her appeal on two grounds. Firstly, that the decision to make the order on its merits failed properly to grapple with the underlying causes of the proceedings which the Divisional Court identified, and exhibited bias towards her. There was in short, she submits, no basis for reaching any conclusion that the previous proceedings that she had sought to bring, which from time to time she withdrew, were vexatious.

The second ground relates to the effect upon her of the order which the Divisional Court made and I will turn to that shortly in a moment. Maurice Kay LJ, in a full judgment, set out the history of the litigation. It is therefore, in my view, quite unnecessary to spend time setting it out all over again. If anyone wants to know the details of the proceedings on the basis of which the order was made, they have only to read that judgment. The significant aspect of the history, however, is that it fell within two phases, the first phase between September 1998 and December 2000 culminating in proceedings before the Divisional Court in July 2001. In those proceedings the Divisional Court, headed by Brooke LJ, made no order but adjourned the proceedings brought by the Attorney General for a year to see whether this applicant would make good her stated intention to desist from the vigorous litigious activity consisting of at least some 41 proceedings, which had led to the proceedings being brought against her in 2001.

It is plain that, given that opportunity, this applicant took advantage of it and did not bring proceedings during the year. Therefore, by the time of the second judgment, when no order was made, this applicant had, as Maurice Kay LJ, put in a clean bill of health. But the trouble was what happened thereafter. As she herself accepts, this applicant brought some further 28 proceedings. The Divisional Court records slightly fewer and it was on the basis of that renewal of litigious activity that the Attorney General returned to the court and the Divisional Court made the order that it did.

In my judgment, looking at that history of proceedings dating back, as it did, to grievances which she had against those with whom she had come into contact during her legal practice course, there was no alternative but to make the order that was made.

The order that was made was designed to protect courts up and down this country from being plagued with proceedings which this applicant sought to bring. What is important to realise is that the order made did not prevent justifiable proceedings being brought. As this applicant is well aware, it allows her to bring proceedings but only once they have been vetted by a judge. Thus, if she has a reasonable grievance which can properly be aired through proceedings in court, she will be allowed to bring them. Nothing that she has said in her voluminous written arguments, or in the oral arguments that she advanced today, in any way indicates that the Divisional Court was wrong to make the order that it did. Having been given one chance, which she took in 2001 to 2002, it would have been idle, in my judgment, of the Divisional Court to consider giving her another chance. When there is no threat of an order hanging over her, she has shown herself unable to resist the temptation to bring proceedings.

However, she argues, by way of a second argument, that the order interferes with her wish to pursue an active career as a lawyer, either in a different jurisdiction as a solicitor or the equivalent, or as a barrister. That she says has a particularly discriminatory and unfair impact upon her because she says she labours under difficulties of dyspraxia and dyslexia. Certainly, both in her written arguments and in her oral arguments, she exhibits no signs of being affected by those grievous disabilities. But it is important for us, in my judgment, to consider whether the effect upon her chosen career is such that some alternative order should have been made.

It is clearly right that any court considering making an order pursuant to section 42 should bear in mind the impact it will have upon the particular individual. It will plainly have a far greater impact upon someone who is qualified as a lawyer and seeks to pursue a legal career, should those who set the standards for such legal career learn that an order pursuant to section 42.1 has been made. That we accept and we have been given evidence, which again we accept from Miss Douglas, that she has laboured under great difficulty in pursuing a legal career as a result of the order made by the Divisional Court. This is not the place nor these the appropriate proceedings to consider the legality or lawfulness of the attitude of those bodies such as the Law Society, the Faculty of Advocates in Scotland and other similar bodies. The question for us of an application for appeal is whether that impact was such that the court should not have made the order it did.

It has to be recalled that the purpose of these orders is to protect the courts from having to deal with unjustified litigation, expensive as it is, not only in time and money but in filling the space that would otherwise be taken by more deserving litigants. Having regard to that purpose of protection, in my judgment it does not avail this applicant that it will have a particularly adverse effect upon her. The adverse effect is wholly understandable, but nevertheless it could not lead to this applicant escaping from the consequence of the vigorous litigation she has pursued time and again.

The final point I believe it necessary to deal with relates to an argument she has sought to advance which she says ought to lead to a reference to the European Court in Luxembourg. She says that making such an order, with the impact that it does have upon her livelihood, constitutes interference with her freedoms of association and movement enshrined in the European Union Treaty. It has to be recalled that this court, in a decision binding upon us, has already decided in a case called Ebert v The Official Receiver [2001] EWCA Civ 340, [2002] 1 Weekly Law Reports 320, that such an order does not infringe rights enshrined in the European Convention on Human Rights, still less any provision of the Human Rights Act 1998. Such an order does inhibit access of Miss Douglas to the courts but the courts in every jurisdiction are entitled to protect themselves from the flurry of litigation as is evidenced in this case. We reiterate that which is well-known to this applicant, that there can be proceedings brought with leave of a judge. Moreover, the absence of any limitation of time can be rectified when and if the time comes for Miss Douglas to apply to the court to have the order removed, but I, for my part, am quite satisfied that the Divisional Court had no realistic alternative other than to make the order it did without limitation of time.

In those circumstances I would refuse this application.

LORD JUSTICE RIX: I agree. I agree that the Divisional Court had no realistic alternative to that of making the order that it did and that there is no realistic prospect of success such as might entitle this court to give Miss Douglas permission to appeal here from the order of the Divisional Court. I also agree with my Lord, Lord Justice Moses’s opening remarks that this is a sad case, and perhaps every case of a section 42 litigant is a sad one, but this case is perhaps particularly sad in that Miss Douglas is a lady of obvious charm and ability, if I may say so, as she has shown in her written and oral submissions. It is sad because, as my Lord has explained, Miss Douglas was given a chance by the Divisional Court in 2001 and she, in a sense, took that chance or half took it; half took it in the sense that once she had an order in her favour dismissing by consent the Attorney General’s earlier section 42 proceedings, she then fell back into her earlier ways of vexatious litigation. But it is also sad because Miss Douglas is not only a lady of ability, as I have said, but also one who had already graduated in a law degree before the whole series of events which has given rise to today’s hearings took place, and obviously would like to pursue a career in the law, and these matters present her with grave difficulties in pursuing that ambition.

I can only express the hope that, with the assistance of the restraint imposed upon her by the section 42 order which, as my Lord has explained, nevertheless permits her to go to the court at any time, as she has done, for permission to bring litigation if the court gives her leave, Miss Douglas will in due course find it possible to put her grievances, such as they may be, which have brought her to this position by causing her to issue prolific litigation, behind her to overcome her past vexatious litigation and enable her, with her abilities, to help other people rather than simply to concentrate upon her own woes. It is, as I have said, a sad case, but I hold out hopes for the future in that way.