Attorney General v Benton

LORD JUSTICE DYSON: I will ask Henriques J to give the first judgment.

MR JUSTICE HENRIQUES: In this case the Attorney General applies for a civil proceedings order against the defendant, Paul Benton, pursuant to section 42 of the Supreme Court Act 1981 (as amended). In view of the fact that the defendant consents to the making of such an order it is not necessary to review the preceding litigation in the customary detail.

We have heard representations as to whether the order should have a time limitation and, accordingly, be a limited order, and we are also asked to consider granting permission to join the Tennal Group Litigation.

The applicant's chronology is not in dispute. At least 25 of the 32 claims instituted by the defendant have been struck out at an early stage in the proceedings on the ground that they were abusive and vexatious and/or disclosed no reasonable grounds for bringing the claim. He has instituted six claims against members of the judiciary; two claims against the prime minister; and a claim against a chief medical officer arising out of the alleged cutting off of his child's umbilical cord at birth. We must, of course, be satisfied that the statutory preconditions are met and I keep in mind that we have a discretion whether or not to make an order.

I have in mind the hallmarks of persistent and habitual litigious activity. Between 6th April 2001 and 10th June 2003 he instituted proceedings on 32 separate occasions which is at a rate of over one action per month over a period of 26 months. By any standard that is persistent and habitual. The defendant accepts that he issued these proceedings habitually and persistently, without any reasonable ground and that they were vexatious. In my judgment the need to provide members of the public with a measure of protection against abusive and ill-founded claims must take precedence in this case over the defendant's prima facie right to invoke the jurisdiction of the civil courts, particularly having regard to the resources of the courts. Indeed it is conceded that a proper exercise of our discretion will necessarily involve the making of a civil proceedings order, the only issue between the parties being as to whether there should be a limited order or not.

Section 42(2) provides that an order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely. This is to be contrasted with certain other forms of disqualification, for example the Road Traffic Offenders Act 1988, section 42(1), where a person who is disqualified may apply to the court which made the order to remove the disqualification. And section 1 of the Company Directors Disqualification Act 1986 provides that a disqualification order is an order for a period against a person that he shall not, without leave of the court, be a director, liquidator etc.

Since the introduction of the power to make a civil proceedings order for a fixed period of time, a limited order, only two such orders have been made. In Attorney General v Price 9th March 1997 (unreported) Admin, an order was imposed for 15 years and in Attorney General v Yeo 8th December 1999 (unreported) Admin, a limited order was made of 10 years' duration.

In Price a 15-year order was imposed as such a period of time struck the right balance between the need to bring to an end the problems posed by Mr Price's vexatious behaviour and the desirability of removing the restriction at a time when it would be unlikely to serve a useful purpose.

In Yeo, Smith J (as she then was) concluded that since Mr Yeo's litigious career had been limited to commencing actions arising out of a will, a ten-year period would be sufficient protection for potential defendants as by this expiry date any relevant limitation period would have expired. Such a period would also provide sufficient time for Mr Yeo's anger at the perceived injustice to him to have abated. It would permit him unrestricted access to the court in later life and a ten-year period struck a balance between protecting the public interest, the defendant's interest and Mr Yeo's interests.

Miss Silver submits that this is an appropriate case for us to make a limited order. She submits that the respondent's issue of these proceedings was a feature of his mental illness and that his illness is now controlled by his voluntary compliance with his medication. He has remained voluntarily compliant with his medication since his discharge from hospital on 6th November 2003. He is no longer abusing cannabis. He has not sought to issue any further litigation since July 2003 when this application was made. He has conducted these proceedings appropriately and with the assistance of legal representation.

It is particularly pointed out that between June and August of 2001 he was particularly active with 12 sets of proceedings being issued. Having been admitted to hospital in August 2003 he received treatment until November 2003 and, having received treatment, has not sought to commence any action thereafter.

Mr Maxwell-Scott points out that it is not surprising that his activity abated somewhat in mid 2003. On 14th August 2003 he was arrested for committing a breach of the peace in a county court. He remained hospitalised and unable to commence litigation until 6th November.

The critical document to which we have had regard is the psychiatric report dated 2nd December 2003 of Dr Perinbanayagam, consultant psychiatrist. It is only necessary to cite one subparagraph of his opinion in which he writes:

In determining whether there should be a time limitation, we must consider whether there is any logic and rational basis for such a time limitation having concluded that a civil proceedings order is necessary and required in the first place. We can find no such basis in the present case.

The litigant's activities ranged far and wide, both as to defendant and as to subject matter. Nothing in the psychiatric report encourages the view that at any particular date in the future capable of pre-estimation that the litigant's activities or ambitions are likely to abate. Accordingly, for my part, I conclude that this is not an appropriate case for a limited order.

As to the application for permission to be joined to the Tennal Group litigation, about which Mr Maxwell-Scott, on behalf of the Attorney General, concedes that it would be appropriate for us to grant leave, his involvement in that is currently stayed. I have read the basis on which it is sought to distinguish that claim from the proceedings that triggered the instant application. For my part, I am satisfied that it is wholly different in character. It is not brought against any person in connection with the defendant's former partner. It is not brought against any member of the judiciary nor any individual holding public office. It is an application to be joined as a party to already existing proceedings brought by other claimants. Prima facie the defendant's case appears to be identical or similar to that of other claimants. For that reason I would exclude the Tennal Group Litigation claim, BM 303969 and BM 117029 from the ambit of the order sought which will be without limit of time.

LORD JUSTICE DYSON: I agree. Are both of you content with that way of dealing with the application in relation to the group litigation? My Lord has suggested that that simply be excluded from the ambit of the civil proceedings order, but I think you were suggesting that we should give permission for an application to be made to join? I am not quite sure what is the best form of order to give effect to what has been agreed.

MR MAXWELL-SCOTT: I have prepared a draft order which I could hand up.

LORD JUSTICE DYSON: Is this agreed between you?

MR MAXWELL-SCOTT: I have shown it to my learned friend. I do not think she had any observations on it. I think the point which I would draw to your Lordships' attention is that, in my submission, it would be for the judge with conduct of that litigation to decide whether the claimant ought to be joined to that litigation by reason of whether or not he was eligible and held the requirements of that group litigation.

LORD JUSTICE DYSON: I thought that what you were seeking was that on the footing that an order was made, a civil proceedings order was made, as we have made it, then pursuant to that order we would give permission to make an application in the litigation.

MR MAXWELL-SCOTT: Exactly.

LORD JUSTICE DYSON: That is what you want.

MR MAXWELL-SCOTT: Yes, I have drawn distinction between that and giving him permission to join the litigation, which in my submission is for the judge with conduct of it.

LORD JUSTICE DYSON: Yes. I think then that the order we make should be: (1) that we make an unlimited civil proceedings order in relation to this defendant; and (2) that pursuant to that order we give permission for an application to be made to join the group litigation. Is that right?

MR MAXWELL-SCOTT: Yes, I think it is. I think that is essentially what I have done in my draft order.

LORD JUSTICE DYSON: Perhaps you could hand that up? Have you got a copy for Miss Silver?

MR MAXWELL-SCOTT: Yes, I have given her one outside court.

LORD JUSTICE DYSON: You have given her one, right.

MR MAXWELL-SCOTT: The words in square brackets in paragraphs 1 and 2 would now come out.

LORD JUSTICE DYSON: Yes.

MR JUSTICE HENRIQUES: Come out.

MR MAXWELL-SCOTT: And then the permission point is dealt with at paragraph 4.

LORD JUSTICE DYSON: Yes, that seems to me to be the case.

MISS SILVER: My Lords, I am content with it to be dealt with in that way. In addition, my Lords, at paragraph 3 there is also square brackets which will need to be struck out.

LORD JUSTICE DYSON: All the square brackets 1 to 3 come out.

MISS SILVER: Yes.

LORD JUSTICE DYSON: We will make an order in those terms. Thank you both very much for your helpful submissions.