Attorney General v Durlacher

LORD JUSTICE MAY: This is an application on behalf of the Attorney General for a civil proceedings order against the respondent Mr Durlacher under section 42 of the Supreme Court Act 1981 as amended. This provides that if on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and consistently and without reasonable ground instituted vexatious civil proceedings, whether in the High Court or any inferior court and whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity to be heard, make a civil proceedings order or a criminal proceedings order or an all proceedings order. What is asked for in the present case is a civil proceedings order.

There is before the court an affidavit form by Mr Holder, with evidence of 19 separate proceedings brought against various people by the respondent. All of these 19 proceedings have been unsuccessful. A large number of them has been struck out as disclosing no reasonable cause of action or similar. The period of time between which these actions have been brought is November 1994 to December 2002. The affidavit contains details of each of these unsuccessful proceedings.

It is in my judgment at least on the face of it clear that taking the matter in the round, as one is obliged by law to do, this is in all probability a case in which a civil proceedings order should be made against Mr Durlacher. In addition, his acknowledgment of service, which provides no persuasive reason why the order might not be made, indicates that he commenced another action in 2003.

Mr Durlacher has not appeared before the court this morning. The court has a letter from his daughter indicating that he is suffering from prostate cancer and is very ill. He is accordingly unable to attend the hearing. Mr Durlacher's daughter has provided a copy of a short medical certificate from a consultant neurological surgeon indicating that the prognosis for his prostate cancer is very poor indeed and he may well not survive very long.

In the circumstances, in my view, the right thing to do is to adjourn the application today, although regrettably it may be the case that it never returns.

The application that Mr Robb makes on behalf of the Attorney General is that in those circumstances an interim order should be made. I think that is the right thing to do. Technically speaking, in my view, the way of doing it is to make an interlocutory injunction under section 37(1) of the Supreme Court Act 1981, such as is referred to on page 1709 in the White Book in the notes to RSC order 94, rule 15. The injunction which I would grant would be in the same terms as an order would be made under section 42(1)(a) of the 1981 Act, and I will simply say that the injunction should remain in force until further order, there being liberty to apply.

If my Lord agrees with that, we can just discuss with counsel whether or not some time limit should be put on the matter coming back before the court.

MR JUSTICE NELSON: I agree that the matter should be adjourned and an interim injunction granted as the order stated.

LORD JUSTICE MAY: Mr Robb, do you think that we can leave the matter with the order being there until further order, or should we put a time limit on it?

MR ROBB: My Lord, may I just take instructions?

LORD JUSTICE MAY: Yes.

MR ROBB: My Lord, we are content for it to be in the terms that your Lordship has suggested. If Mr Durlacher wants to apply, he can do so. I am very grateful.

LORD JUSTICE MAY: I wonder if perhaps we could also say that the Attorney General's office should inform the court office where matters stand in six months' time and, if necessary, at six-monthly intervals after that. Is that all right?

MR ROBB: Yes, my Lord. My Lord, could it be the Treasury Solicitor as opposed to the Attorney General?

LORD JUSTICE MAY: Yes, of course. The Treasury Solicitor. Thank you. Good. Is there anything else that we need to do?

MR ROBB: My Lord, no.

LORD JUSTICE MAY: Do you want costs reserved?

MR ROBB: We are not seeking costs.

LORD JUSTICE MAY: Right. Thank you very much.