Attorney General v Bhamjee

LORD JUSTICE ROSE: The Attorney General applies for a civil proceedings order under section 42 of the Supreme Court Act 1981.

The background to this matter is unusual, if not unique, because on 25th July 2003 the Court of Appeal, in Bhamjee vForsdick (No2) [2003] EWCA Civ 1113, was specially convened to examine the extent of the court's inherent jurisdiction in relation to Mr Bhamjee in particular. In its judgment, the court, in which the Master of the Rolls presided, devised an extended civil restraint order, formally known as an extended Grepe v Loam order, or an Ebert order, which had the effect of restricting, in the respects identified in paragraph 57 of the judgment, Mr Bhamjee's litigious activities against the defendants, five of whom were named in those proceedings, and their legal advisers, relating to the subject matter of litigation already brought by him against them. That order has effect for two years, but it does not apply to persons who were not the defendants in those proceedings or to other subject matter.

The background to the present application, and indeed to the decision of the Court of Appeal in July, can be shortly described. Initially, Mr Bhamjee was aggrieved by a decision of the London Borough of Newham to refuse him planning permission for a change of use so that he could operate a car cleaning business in a yard at the rear of premises in Forest Gate, London. Mr Bhamjee appealed against the local authority's decision to a planning inspector. That appeal was unsuccessful. Thereafter, he appealed to the High Court which dismissed his appeal. His application for permission to appeal was refused by the Court of Appeal.

Since that time Mr Bhamjee has sought to litigate extensively in relation to essentially the same issues. For example, by bringing applications for judicial review against the Newham Borough Council, against the Bar Council for refusing him direct access to a barrister, in relation to bankruptcy proceedings which ensued from his failure to pay the costs of his unsuccessful planning appeal, and against barristers who have appeared against him on various occasions. It was proceedings which were brought against barristers which culminated in the Court of Appeal decision in July.

The relevant authority for the present proceedings was given by the Solicitor General on 19th June 2003 and the proceedings were issued on 8th July. There are before the court two witness statements from Rowena Wisniewska, a solicitor in the Treasury Solicitor's department. The first is dated 8th July. That has exhibited to it a schedule, in summary form, of 16 of the actions which are today relied on by the Attorney General.

There is a second statement, dated 14th November, from Rowena Wisniewska, which deals with Mr Bhamjee's activities since an interim order under section 42 was made by the Divisional Court on 31st July 2003. That second statement illustrates the likelihood of continuing litigation on the part of Mr Bhamjee, unless he is restrained by the order which is now sought.

There are, in addition to those 16 matters listed in the schedule, three other matters to which at this point reference can conveniently be made. There was an application by Mr Bhamjee for judicial review against the Legal Services Ombudsman, under the reference CO/2101/03, which was refused by Collins J, and on renewal was refused by Sullivan J on 14th July this year. Sullivan J described the application as "hopeless" and made an order for costs against Mr Bhamjee.

On 13th August an eighteenth matter came before Pitchers J. That is referred to at page 167 of the exhibit to Miss Wisniewska's second statement. The actions which are referred to in the order made by Pitchers J are identified at page 167 by (a), (b), (c) and (d): (a) is the present proceedings by the Attorney General, (b) is action number 6 in the schedule exhibited to the first statement, (c) is action number 3 and the first of the matters identified in (d) is action number 5.

The last attempted litigation to which it is necessary to refer is that dated 2nd December 2003 seen by this court today. It incorporates an application by Mr Bhamjee for an order against the Solicitor General and the advocates acting for the Attorney General today to pay a fine and be disbarred from representing the Attorney General, because, it is said, they are interfering with the administration of justice by making malicious false statements. Mr Adam Tolley, who appears for the Attorney General before this court today, is named in those attempted proceedings.

I refer to what might be described as numbers 17, 18, and 19, because they clearly demonstrate a willingness and determination on Mr Bhamjee's part to continue litigation unless restrained.

The questions which must be addressed in considering the propriety or otherwise of a civil proceedings order under section 42 are: first, whether Mr Bhamjee has habitually, persistently and without reasonable ground instituted vexatious civil proceedings or made vexatious applications; Secondly, if so, whether in the exercise of the court's discretion a civil proceedings order should be made. In determining that matter it is necessary to assess the balance of justice, taking into account a citizen's right to litigate and the need to protect others against abusive or ill-founded claims.

Guidance for the court when addressing these matters is to be found In Re Vernazza [1959] 1 W.L.R. 622, and in Attorney-General v Barker [2000] 1 FLR 759. Lord Bingham, in Barker, described the essential vice of habitual and persistent litigation as keeping on litigating when earlier litigation has been unsuccessful and when, on any rational and objective assessment, the time has come to stop. There must be an element of repetition, but the repetition need not be over a long period. The hallmarks of a vexatious proceeding include the absence of a discernible basis in law for the proceedings, the subjecting of the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to the claimant, and an abuse of the process of the court, that is to say, using the court process in a way significantly different from the ordinary and proper use of the court process. When considering whether proceedings have been instituted without reasonable ground the court has regard, not only to their actual outcome, but also to their prospects of success.

In In Re Vernazza it was established by the Divisional Court, whose decision was approved by the Court of Appeal in [1960] 1 Queens Bench 197, that the court must look at the whole history of the matter.

In Attorney-General v Jones [1991] W.L.R 859, it was held by the Court of Appeal that, in considering whether or not to make a section 42 order, the Divisional Court is entitled to rely upon the conclusions of the judges in the underlying proceedings if they have concluded that those proceedings were vexatious or involved an abuse of process. A litigant is not permitted to challenge such conclusions save by appeal. Absent successful appeal, such decisions stand and may be relied upon by a Divisional Court to whom such an application is made.

On behalf of the Attorney General, Mr Tolley submits that in the present case repetition is readily established. 14 claims, identified in the initial schedule, have been instituted by Mr Bhamjee since 2000. Within those 14 claims, and 2 further claims instituted against him, Mr Bhamjee has instituted 25 applications and appeals. The litigation has intensified in frequency since his planning claim was dismissed in 2001. Indeed, 11 of the 14 claims have been instituted since December 2001.

As to the litigation being habitual and persistent, Mr Bhamjee has sued the same party or parties repeatedly in reliance on essentially the same cause of action, in that in claims 2, 3, 4, 7, 9, 10, 11, 12, and 13, having failed in his challenge to the planning decision and exhausted all legitimate avenues of appeal, Mr Bhamjee has repeatedly raised the same hopeless points time and again.

In relation to claim number 7: there was a claim to the Newham Standards Council about a councillor whom Mr Bhamjee sought to blame for the failure of his planning appeal. That gave rise to an application for judicial review by Mr Bhamjee which failed.

As to actions 4, 10 and 13: they arise from complaints sought to be made by Mr Bhamjee against the Bar Council in relation to barristers who had represented the other side in the course of proceedings to which Mr Bhamjee was a party. Claims 11 and 12 are claims specifically made by Mr Bhamjee directly against barristers in that category.

When confronted by an adverse decision, Mr Bhamjee's frequent, if not invariable, response has been to appeal, as he did in claims 1, 2, 7, 9, 11, 12, 15, and 16. Mr Bhamjee's regard for orders for costs made against him has not been high. On the contrary, as claims 1, 2, 6, and 9 show, such orders have been routinely ignored. So it is said that the essential vice of Mr Bhamjee's litigation has been to go on litigating when, on any rational view, the time to stop has passed.

As to litigation without reasonable ground, giving rise to vexatious litigation, it is a striking feature, Mr Tolley submits, that all of Mr Bhamjee's litigation has been unsuccessful. Many of his claims and applications have been dismissed on the express basis that they were entirely devoid of merit or the claim made was unintelligible at all. In that category are numbers 1, 2, 4, 6, 7, 9, 10, 11, 12, and 14. None of the claims, Mr Tolley submits, had any basis discernible in law. The effect of his litigation has been, whatever its intention, to subject the various defendants to inconvenience, harassment and expense out of all proportion to any possible gain to him.

Frequently his litigation has involved an abuse of the process of the court. That arising from his failed planning appeal has become increasingly unreal. There have been attempts made to sue not only barristers who have appeared against him, but some of the judges who have decided cases against him, and to join the Lord Chancellor in proceedings on the basis that he is responsible for the decisions of the judges.

Abuse of the court's proceedings is illustrated by an application in claim number 2 for permission to bring contempt proceedings against the barristers who had appeared against him in the planning claim, an application in claim number 7 to stay an appeal to the Court of Appeal so as to bring a private prosecution and/or join the Lord Chancellor in order to sue Sullivan J and Dyson LJ, and an application in claim 13 for an injunction to prevent the Chairman of the Professional Standards Committee of the Bar Council from entering the Bar Council's premises until there had been certain unspecified criminal proceedings in a Magistrates' Court.

As to the two proceedings brought against Mr Bhamjee, he has, in response, brought retaliatory proceedings. Number 5 was a possession claim brought against Mr Bhamjee but discontinued with permission, as he, in his submissions to this court today has drawn attention, on 16th January 2002. On 22nd January Mr Bhamjee issued claim number 6 against his landlord who had made the claim in number 5. Mr Bhamjee claimed damages for negligence, breach of statutory duty, defamation and discrimination. Those proceedings were struck out on their merits.

Prior to claim number 16 being issued, the solicitors acting for the victim in a road traffic accident, to which again Mr Bhamjee referred in his submissions to this court today, wrote a letter before claim to Mr Bhamjee. His response was action number 15, seeking permission to apply for judicial review in relation to the letter.

Claim number 2 was an application for judicial review against the Secretary of State for Transport, Local Government and the Regions. Gibbs J, on 9th November 2001, took the view that Mr Bhamjee's conduct in that litigation required that the defendants need not attend court in response to any application made by Mr Bhamjee, unless specifically requested to do so by the court.

In its judgment in Bhamjee v Forsdick (No 2), to which, at the outset of this judgment, I referred, the Court of Appeal referred to Mr Bhamjee's "bombardment" of "hopeless applications." It was in the light of that that the court made the extended civil proceedings order to which I referred earlier.

It was a similar order which Pitchers J made on 13th August 2003, relating to litigation against the Attorney General and certain Secretaries of State, and in relation to Mr Patel and Mr Karmadi who are referred to in claim 6, and the London Borough of Newham referred to in claim 3. In addition, as I have said, an order was made in relation to claim 5 against Mr Patel.

The submission, in the light of all these matters, made by Mr Tolley, is that, unless a section 42 civil proceedings order is made, Mr Bhamjee will go on litigating endlessly. It is, in that regard, pertinent to mention one other matter, namely, that during the course of the proceedings before the Court of Appeal, Mr Bhamjee sought to discover the address of counsel who was appearing as a friend of the court on that occasion, plainly with a view to litigating against him.

In his acknowledgment of service in response to the present application, Mr Bhamjee disputes the jurisdiction of this court. In so doing, he makes a not readily understandable reference to Talaq Divorce. In his submissions to this court today Mr Bhamjee has stressed that he is a litigant in person and he is acting, not merely in his own interests, but, he says, also in the interests of other members of the public. He referred to a considerable number of statutory provisions, not all of them having obvious relevance to the present application.

He referred to an authority, which is identified at page 289 of the bundle exhibited to the first statement before the court from the Treasury Solicitor, DunoonDevelopment Limited v Secretary of State and Poole BoroughCouncil.

He also referred to certain proceedings, apparently in Zambia, relating, it may be, to his former wife in Zambia, and to certain reliance on Rayden on Divorce, which he says has given rise to a miscarriage of justice.

He says that the Legal Services Ombudsman, whose decision, as I have indicated, he has sought, unsuccessfully, to challenge by way of judicial review, failed to take into account section 22(10) of the Courts and Legal Services Act 1990.

He stresses that it is possible to sue barristers. He says that it is possible to obtain orders for costs against barristers in relation to proceedings in which they have participated.

He says that the enforcement notice in relation to the use of his yard was null and void because of the size of the yard. He complains that a number of counsel with whom he has been involved, in that they have appeared for other parties in his litigation, have themselves been in contempt of court. He says that the present proceedings could have been withdrawn and he could have been called as a witness.

In relation to the landlord and tenant dispute, which gave rise to claims numbers 5 and 6, to which I have already referred, he says that he did not abuse the process of the court.

He refers to the leave which he was granted by Master Yoxall in relation to action number 6. He says that he wants that matter to be heard by a High Court judge.

He says that there has been a breach of trust and harassment of him by Mr Patel.

He referred, as I have already said, to the road traffic accident. He says that he wants leave from the Divisional Court to go to the Court of Appeal in relation to that matter.

He also referred to four other appeals which he said he would like to have the Divisional Court's leave to take to the Court of Appeal.

He also referred to an application made for a declaration against the Zambian state.

The Legal Services Ombudsman, he said, did not observe natural justice and, he, Mr Bhamjee, is seeking direct access to members of the bar.

He said that he has not abused the proceedings of the court in any of the 19 proceedings to which I have referred. The present application is unnecessary in view of the order made by the Court of Appeal in relation to the matter which was before it in July of this year.

Finally, Mr Bhamjee asserts that he is a victim of events. All he wants is a second bite at the cherry.

Those submissions I have considered. In my judgment it is plainly shown, in the present case, that Mr Bhamjee has habitually and persistently and without any reasonable ground, instituted vexatious civil proceedings and made vexatious applications. Having reached that conclusion, and carrying out the necessary exercise which takes into account a citizen's right to litigate on the one hand, and a need to protect others against abusive and ill-founded claims on the other, I am satisfied that the court's discretion ought to be exercised in favour of making a civil proceedings order without time limit against Mr Bhamjee.

If my Lord agrees, that is the order which I would propose.

MR JUSTICE JACKSON: I agree. The statutory preconditions set out in section 42 of the Supreme Court Act 1981 are clearly fulfilled. Mr Bhamjee has instituted a series of hopeless legal actions and applications causing considerable inconvenience and costs, both to the opposing parties and to the courts.

It is quite clear that unless pre-emptive action is taken Mr Bhamjee will continue to launch successive and hopeless legal claims. The only proper way for this court to exercise its discretion under section 42 is by making a civil proceedings order in the terms proposed by my Lord.

MR TOLLEY: I am most grateful, my Lord.

MR BHAMJEE: I would like to have leave to appeal against the orders to the House of Lords?

LORD JUSTICE ROSE: That is refused.