Her Majesty's Attorney General v Mahon

Introduction:

This is an application by the Attorney General for a Civil Proceedings Order pursuant to section 42 of the Supreme Court Act 1981 ("the 1981 Act") against Kevin Mahon.

The question for our determination is whether Mr Mahon has instituted vexatious proceedings or made vexatious applications within proceedings such as to warrant the making of an order under section 42 of the 1981 Act. If he has, then we have a discretion whether or not to make the order.

The Attorney-General's application is supported by a witness statement and exhibit of Rowena Wisniewska, who is a lawyer in the Treasury Solicitor's Department, and by a further witness statement from Patrick Butler. Mr Butler is a solicitor who has acted on behalf of Yeovil Town Council which has been involved in a significant number of actions involving Mr Mahon.

Section 42 of the 1981 Act provides, so far as is material, that:

I remind myself that the approach the court should adopt in considering an application of this kind was set out in the judgment of Lord Parker CJ in In re Vernazza [1959] 1 W.L.R. 622 at 624 in these terms:

In Attorney General v Barker [2000] 1 FLR 759 Lord Bingham CJ gave the following illuminating guidance (at page 764 on the meaning of the epithets found in section 42(1)):

It is not the task of the court on an application under section 42 to reconsider the merits of the underlying actions. The court is entitled to rely on the conclusions reached by the judges in those proceeding (see AttorneyGeneral v Jones [1990] 1 W.L.R. 859, 863). The Court of Appeal has recently held that the provisions of section 42 are compatible with the European Convention on Human Rights and the Human Rights Act 1998 (see Ebert v Official Receiver [2001] EWCA Civ 340; [2002] 1 W.L.R. 320).

There are three broad strands to the litigation pursued by Mr Mahon on which the Attorney General places reliance. The first relates to the refusal of a Hackney Carriage Licence. The second relates to the termination of Housing Benefit and Income Support. The third relates to a dispute with his neighbours, Mr and Mrs Rainbow, in relation to a fence between their properties.

Mr Mahon has instituted no fewer than 31 actions since September 2000. Every action which has reached a final conclusion has been determined against him. Within these proceedings he has made numerous applications and appeals, the vast majority of which were both unmeritorious and unsuccessful. Mr Carr, who appears for the Attorney General, submits that Mr Mahon has demonstrated all the hallmarks of vexatious litigation, both in terms of issuing proceedings and of making vexatious applications within proceedings.

This litigation stems substantially from the refusal of Yeovil Town Council to grant Mr Mahon a Hackney Carriage licence on the grounds that he was not a fit and proper person. Their reasons for the refusal included the fact that he had previous relevant convictions. Mr Mahon took exception to information relating to those convictions being passed on to the relevant local authorities by the police and/or by Magistrates' Courts. I will summarise the effect of these actions in these terms:

Mr Mahon appealed against the council's refusal to grant him a licence to the Magistrates' Court, the Crown Court and, by way of case stated, to the High Court. So far as proceedings in the High Court were concerned, it is clear from the judgment of Sullivan J that his appeal was hopeless. In it he sought to add 41 questions to those posed in the case stated and to raise unmeritorious arguments under both the Human Rights Act and the Data Protection Act. Costs of £4,035.88 were awarded against him.

In this action Mr Mahon sought to get round the refusal of the Magistrates to allow his appeal against the refusal of his application for a Hackney Carriage Licence by suing the Magistrates and their clerk for loss of earnings. The action was struck out on 29th March 2001. By the time his claim was considered by District Judge Smith on 23rd March 2001, Mr Mahon had issued three further sets of proceedings (Actions 5, 6 and 16) and sought damages of £170,001 in total. All four actions were struck out. Judge Cotterill refused permission to appeal on the papers on 24th April 2001 and at an oral hearing on 10th May 2001. An attempt to appeal to the Court of Appeal was doomed to failure.

Mr Mahon then tried the alternative tack of judicial review proceedings. He sought, amongst other things, to attack the jurisdiction of Judge Cotterill to make the orders he did. That application was dismissed as unarguable by Hooper J on 13th December 2001.

Although the scope of Action 3 is unclear, it appears to have been another collateral attack on the decision not to grant him a Hackney Carriage Licence. The action was struck out by District Judge Smith on 12th January 2001. It appears to be linked to Action 4, which was issued on the same day and sought similar relief. On this occasion the defendant was Yeovil Town Council, as opposed to South Somerset District Council. This action was struck out on the same day.

This action was issued on the same day as Actions 3 and 4. This time the Chief Constable was sued for loss of earnings because the police had given information to Yeovil Town Council in relation to the licence application. The action was one of four struck out by District Judge Smith on 29th March 2001. Mr Mahon appealed, and his appeal was dismissed.

This action followed the same pattern. The proceedings were issued in January 2001, dismissed by District Judge Smith on 29th March 2001 and permission to appeal was refused by Judge Cotterill on 10th May 2001.

This action followed a similar pattern but included a claim for damages of £100,000. It was also struck out by District Judge Smith on 29th March and permission to appeal was also refused by Judge Cotterill on 10th May 2001.

It is apparent from Action 14 that Mr Mahon had been refused the support of the Legal Services Commission (LSC) in relation to the litigation connected with his Hackney Carriage licence application. This refusal prompted a claim for £100,000 against the Lord Chancellor for his alleged failure to protect Mr Mahon from the law-breaking proclivities of Yeovil Town Council and its officers. District Judge White struck it out on 15th March 2001. Mr Mahon made an identical complaint against the LSC (Action 15) which produced an identical result, with the exception that on this occasion costs of £850 costs were awarded against Mr Mahon.

There was then a slight respite before Mr Mahon initiated connected proceedings in or about August 2001 against Yeovil Town Council (Action 17), the solicitors who had acted for the council (Action 18) and those solicitors again (Action 19). All three actions were stayed by District Judge Smith on 6th September 2001. Mr Mahon then applied for the removal of the stay with the result that all three actions were struck out with costs on 6th November 2001. He attempted unsuccessfully to appeal in each case, and he also sought to appeal against the assessment of costs. His applications for permission to appeal were dismissed with costs by Judge Cotterill on 31st January 2002.

Mr Mahon has told us today that the business about the taxi licence ended at the end of 2001. He does not understand why the Attorney General has dragged it up now. He was given a statutory right to pursue the matter through the courts. He also said that he had a right to give notice to the data controller under the Data Protection Act. He said that these actions were all generated from rights conferred by Acts of Parliament. He said he was using the new Human Rights Act and he was making submissions to various courts under Acts of Parliament. He has asked a local authority for information about an item in the council minutes and he cited the Freedom of Information Act and sections of the Local Government Act. He was pursuing judicial review in 2000. As a Council Tax payer he had the right to pursue matters through the courts, and he was given the right to challenge any active local authority which affected his interests. He was exercising his rights which were bestowed on him by an Act of Parliament.

After Mr Mahon told us this Sullivan J drew his attention to a letter to the town clerk of Yeovil Town Council, dated 23rd May 2003, and a letter to a Yeovil Town councillor of the same date. These are formal letters to a councillor and the town clerk of the council, written by Mr Mahon in extremely intemperate terms. One only needs to read one sentence of the opening of his letter to the town clerk to get the sense of the way that Mr Mahon exercises, as he says, his statutory rights:

That is a history of the matter relating to the Hackney Carriage licence affair. While it is, of course, correct that Parliament has given Mr Mahon the right of appeal to the Magistrates, and a right of appeal to the Crown Court, it appears to me that the vast majority of the subsequent litigation can properly be described as vexatious. It is understandable why the Attorney General has drawn it to our attention because it is incumbent on him to show the court that Mr Mahon habitually involves himself in litigation of this kind.

In response to Mr Mahon's submissions, Mr Carr, who appeared for the Attorney General, drew our attention to a notice of appeal against an assessment of costs connected with the Hackney Carriage proceedings in the middle of 2002, when he was making intemperate allegations in his appeal against a detailed assessment, alleging that an urgent fax was a forgery, and the documents submitted to the County Court were an attempt to obtain a costs order by deception. Pending further enquiries he wished to refer the matter to the police for a possible prosecution of the council's solicitor and the town clerk for these offences.

On 27th January 2001 Mr Mahon issued his first claim against the Benefits Agency. He claimed damages of £15,000 for alleged breaches of the Human Rights Act. This was one of four claims all issued on the same day (Actions 7-10) against the Department of Social Services or the Benefits Agency and its staff. A fifth action was issued at about the same time. All five actions were struck out with costs by District Judge White on 15th March 2001. All these claims were clearly devoid of merit.

A further claim in respect of benefit (this time Housing Benefit) was issued against South Somerset District Council on the same day as Actions 7-10. Mr Mahon sought an injunction pending a judicial review application. His claim was struck out by default a month after District Judge White's order of 29th March 2001. A second claim against the same defendant was issued on the same day (Action 12) and suffered the same fate. In it Mr Mahon had sought damages of £60,000.

As with the claims connected with the Hackney Carriage Licence there was then a lull in proceedings before Mr Mahon issued a further claim in late 2001. Although he initially entered judgment by default, this action ultimately went the same way as his other claims in that it was struck out with costs.

In relation to this saga Mr Mahon said that mistakes had been made and he complains that the DSS staff did not direct him down the correct route of challenge to an appeal tribunal and ultimately to a Social Security Commissioner. He complains that housing benefits officials had been less than helpful. He concedes that he ought to have gone to an appeal tribunal and the Commissioner and that he was now pursuing that route. He was unable to see what the Attorney General was concerned about.

He says that in due course the Appeal Tribunal ruled in his favour and it was following that that he brought a later action. The skeleton argument by the Department of Work and Pensions in the later action is with the court's papers and sets out why the department was applying for a stay of proceedings on the basis that Mr Mahon's claim was hopelessly flawed and fanciful for the reasons set out in it. It appears to me that the existence of those proceedings may be put on one side, even if Mr Mahon was hopelessly at sea so far as matters of law were concerned, but that really gives no excuse for this welter of legal proceedings which he started after the initial ruling. Even if he thinks that he might have been told more by the staff of the Department of Social Security that is absolutely no reason for bringing six different sets of court proceedings in relation to the matter.

This torrent of litigation began with the institution of Actions 21-23 on 29th April 2002. In Action 21 Mr Mahon sought damages of £250,000 against South Somerset Magistrates' Court for an alleged breach of his rights under the Human Rights Act. This followed an incident on 22nd April 2002 when his neighbour, Mrs Rainbow, appears to have erected some fencing on a part of her property in Park Gardens which Mr Mahon seems to have regarded as belonging to him. This led to Mr Mahon effecting a forced entry onto the Rainbows' property and his subsequent arrest for criminal damage. He was bailed the next day on condition that he did not enter Park Gardens in any circumstances whatsoever, and this action was Mr Mahon's response to that order. He also issued proceedings against the Chief Constable of Avon and Somerset (Action 22) and against Mr and Mrs Rainbow themselves (Action 23). These claims were consolidated and then stayed pending the determination of criminal proceedings against Mr Mahon for criminal damage. Actions 21 and 22 were eventually discontinued by Mr Mahon following his conviction on that charge on 22nd August 2002. Action 23 was finally struck out on 12th November 2002, and costs for £3,973.75 were awarded against him.

Mr Mahon sought to appeal against the award of costs on the basis that Mr and Mrs Rainbow had, "conspired with their solicitor... to cover her legal fees with a fraudulent application to an as yet unknown insurance company..." Their solicitor was described by Mr Mahon as crooked, bent and corrupt". Permission to appeal was refused.

In the meantime, he had started further proceedings against the Rainbows (Action 24) whereby he sought an order for access to their land. The proceedings were issued immediately after his conviction for criminal damage on 22nd August 2002 at South Somerset Magistrates' Court.

He then issued Data Protection Act proceedings against the Rainbows, which appear to have been aimed at their solicitor (Action 26). This action was struck out with costs on 12th November 2002. He sought permission to appeal against the costs award. He once again alleged a fraudulent conspiracy between the Rainbows and their solicitor. Again, permission to appeal was refused.

Within days of Action 22 against the Chief Constable of Avon and Somerset being struck out, Mr Mahon issued further proceedings against him. He claimed the same amount as in Action 22 (£250,000), but on this occasion he made allegations of conspiracy and perversion of the course of justice. The claim also contained allegations of forgery against the Rainbows. This action, together with 3 others, was stayed on 19th December 2002 pending the conclusion of criminal proceedings against Mr Mahon in which he himself faced charges of harassment and attempting to pervert the course of justice. Action 29 contained very serious allegations against the Rainbows. They were also defendants to Action 30. Action 31 was brought against the Rainbows' solicitor. In this action Mr Mahon alleged that she was guilty of acts of harassment against him. Mr Mahon has told us that although the date of 15th November appears on the claim form they had in fact been finalised by him and sent to the court before the interview with the police, to which I will refer in a moment.

On the same day that he brought Action 22, Mr Mahon issued proceedings against the Crown Prosecution Service and a senior Crown Prosecutor. This action was stayed on 10th January 2003 on the same terms as Actions 27, 29, 30 and 31. Although the stay remains in place it is clear, on the face of the pleadings, that there are vexatious elements in all these actions.

Mr Mahon says in relation to Mr and Mrs Rainbow that there has been a dispute going on between them for 6 years. He could not find a way of resolving the dispute. Mediation was suggested but they were unwilling to contemplate that, and they said, "See you in court," before he brought matters to a head by damaging the fence. He said that they kept doing things which impelled him to take them to court. He could not see that the Attorney General had any function in the matter. He complained that they were forging title deeds to property, and he suggested that if they simply got in a builder or a painter that would have solved their problems. They had acted in a provocative way and assaulted members of his family and he had statutory rights.

The value of those comments needs to be assessed against a background of the interview that Mr Mahon had with the police on 10th November 2002, after he had been arrested on suspicion of perverting the course of justice and incitement to commit criminal damage. He says that he had filed the actions to which I have referred shortly before this interview. In the course of this interview Mr Mahon made the following remarks:

In relation to the fact that Mr and Mrs Rainbow's solicitors were seeking costs from their clients, he said:

I accept Mr Carr's submission that this interview clearly demonstrates that Mr Mahon is using the civil justice system as a means of harassing the Rainbows in relation to a wrong he perceives they have committed. His aim is to cause them as much aggravation as possible so as to force them to sell their property and move away. In my judgment he is plainly vexatious. We understand that Mr Mahon is now serving a custodial sentence arising out of his conduct towards Mr and Mrs Rainbow and their solicitor.

Any doubt I might have had about the extent to which Mr Mahon can properly be categorised as a vexatious litigant, within the meaning of section 42 of the 1981 Act, was removed immediately I read the contents of the police interview of 10th November 2002. Even without the Rainbow litigation, Mr Mahon's conduct in relation to his other two strands of activity (particularly those relating to his refusal of a Hackney Carriage Licence) would have warranted the making of an order under section 42.

I end this part of this judgment by making the comment that whilst actions involving public authorities and their staff (such as the Yeovil Town Council and the Benefits Agency) are vexatious enough, claims where individuals are subjected to trouble, harassment and expense by the abuse of the legal system are of even greater concern. This is clearly the case in relation to Mr and Mrs Mahon's conduct towards the unfortunate Mr and Mrs Rainbow.

The statutory criteria for making a section 42 order are, in my judgment, clearly fulfilled in this case. I have taken into account all that Mr Mahon has told us today, but I have no hesitation in making the order sought. The order will be for a period of 12 years. By the end of that time, if Mr Mahon behaves himself, I would hope that there will be no further need for these controls.

This is the first application to come before this court since the judgment of the Court of Appeal, to which I was a party, in Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113. In that judgment the court explained the different forms of short term order which courts can now make to protect their processes from litigants who are making a thorough nuisance of themselves. It is to be hoped that once courts up and down the country make more effective use of the battery of powers described in that judgment, the nuisance that the activities of people like Mr Mahon represent may be brought under more effective control, at any rate so far as their luckless opponents are concerned.

It will be remembered that one of the purposes of the orders described in Bhamjee(No 2) is that the courts themselves may be able to police persistent litigation which is obviously vexatious in character without the litigants' and opponents having to be troubled by it. On each occasion when a judge strikes out an action or dismisses an application on the grounds that it is obviously devoid of merit, this phrase should appear on the formal order drawn up by the court. If this is done, by the time the litigant's persistent litigation can fairly be categorised as "habitual", there ought to be a number of court orders on which the Attorney General will be able to rely in section 42 proceedings, without having to exhibit evidence about the course of the different proceedings of the volume that is before the court today.

It is, of course, always open to the court in an appropriate case to place a unilateral stay on proceedings against a particular party if it comes to the court's attention that its orders for costs in earlier litigation against the same party remain unsatisfied. Even where litigants benefit from fees exemption, so that there is no costs disincentive to make them pause before issuing proceedings, there are ample remedies now available to the courts to prevent them vexing other parties on the scale demonstrated by the papers that are now before the court.

The nuisance which Mr Mahon's activities have represented is clearly illustrated by the contents of two paragraphs in a second witness statement before the court. The solicitor for Yeovil Town Council states:

This analysis, of course, does not embrace the expense incurred by the unfortunate Mr and Mrs Rainbow, nor the extent to which the limited resource of the court are being wasted by time-wasting litigation of this type. Of course I am not referring to the occasions on which Mr Mahon exercises his statutory right of appeal granted to him by Parliament, but most of what we are seeing in this case, on this application, does not fall in that category.

Between 1st March 2001 and 30th June 2003 this court made Civil Proceedings Orders under section 42 of the 1981 Act against 14 different litigants. In other words, it made an order of this type every other month. Those who indulge in habitual, persistent, vexatious abuse of the court processes, should take note that this court is very ready to make orders of this kind, if appropriate, when these cases are brought before it. In appropriate cases, too, the court may make an interim order, as it did in the case of Foden yesterday, pending the substantive hearing of the application (see re Blackstone COT 28th July 1994 [1995] COD 105).

This application is therefore granted.

MR JUSTICE SULLIVAN: I agree.

MR CARR: My Lord, two matters; the first is there is no application in respect of costs. The second is this: that in one respect in which, I think, in the light of what Mr Mahon said this afternoon I have misled your Lordship which may have caused your Lordship to insert one paragraph into the judgment which I think no longer accords with history as Mr Mahon has now related it.

LORD JUSTICE BROOKE: Yes.

MR CARR: In my outline submissions at paragraph 21 I had suggested that the sequence of events was that Mr Mahon having been interviewed by the police "set out his stall" and then within a few days issued the -- I think it was four sets of proceedings. Mr Mahon has indicated to this court, and I am not in a position to dispute it and therefore accept it, that in fact those claims had been set up by him.

LORD JUSTICE BROOKE: I will certainly alter what I was about to say in the light of what Mr Mahon told us and I will check the transcript before approving it to make sure that any misunderstanding of that kind is completely removed.

MR CARR: There is in fact a third point, which is this: your Lordship, in the course of judgment, indicated that an appeal against an assessment of costs might be 2002, although I had flagged it up as 2003. I have checked in the document itself and it is in fact 2003.

LORD JUSTICE BROOKE: It is 2003?

MR CARR: It is.

LORD JUSTICE BROOKE: Thank you very much. Civil Proceedings Order for a period of 12 years is made.