HM Attorney General for England & Wales v Sheikh

Introduction

The respondent, Ms Anal Sheikh, was a solicitor. She has been the subject of a Civil Restraint Order (“CRO”) since July 2009. The CRO has not, however, lessened her enthusiasm for all forms of litigation. In his judgment in The Law Society of England & Wales v Anal Sheikh [2018] EWHC 1644 (QB), handed down on 7 June 2018, Jay J extended the CRO and said at [26]:

“…I am going to order that a transcript of my judgment be prepared at public expense, and that once it has been approved by me the transcript and all the papers I have seen be provided to Her Majesty's Attorney General with a request that serious consideration be given by him to apply to the court under section 42 of the Senior Courts Act 1981 (as amended) for an "all proceedings order" against the Defendant without limit as to time. There is absolutely no reason why private parties, even parties exercising semi-public or public functions should have to come to the court at 2-yearly intervals to make further applications for GCROs. The matter needs to be determined once and for all by the Attorney General.”

The papers were provided to the Attorney General. Having considered Jay J’s observations, and Ms Sheikh’s litigation history, he now seeks an “all proceedings order” against her, without limit as to time, pursuant to s.42 of the Senior Courts Act 1981. The application is opposed.

As long ago as the autumn of 2007, Ms Sheikh lost a property dispute in the Chancery Division, which I shall refer to as “the Red River litigation”. The documents show that Ms Sheikh has never got over that. She has spent the following decade and more seeking to reopen the arguments in the Red River litigation, in an increasingly extravagant fashion.

The best summary of this history can be found at paragraph 59 of the judgment of Hickinbottom J (as he then was) in Tariq Rehman v The Bar Standards Board [2016]

As a result of this history, it was perhaps no surprise that neither Ms Sheikh’s skeleton argument in opposition to the application for a s.42 order, nor her oral submissions this morning, made any reference to any of the issues raised by the s.42 application, and instead sought (again) to re-argue the Red River litigation. Moreover, her latest submissions on that topic were nothing if not ambitious. For example, she suggested at paragraph 5:

“The Red River conveyancing and mortgage fraud shows that a Supreme Court Justice, a Lord Justice of Appeal and two Lord Chief Justices have committed a conveyancing and mortgage fraud. It is obvious that the application cannot be determined by a judge of lower rank.”

One of the many strands of this argument is that Briggs J (as he then was), one of the judges who dealt with the case in the autumn of 2007, was somehow involved in the perpetration of a fraudulent instrument. There is also an allegation that he impersonated both Ms Sheikh herself and a High Court judge and significantly enriched himself in the process.

The principal problem with all this is that it has prevented Ms Sheikh from addressing the real issues raised by this application. Despite a number of requests to her to do so, she did not engage with them at all this morning. Instead, shortly before coming into court, we were provided with an unissued application and supporting materials which Ms Sheikh asked us to admit and rule on. They were apparently sent to the Attorney General late last night by email. We read the application and materials, and note that the relief claimed included orders for the production of “the Briggs Fraudulent Instrument”; a hearing to commit the Attorney General and one of his lawyers, Thomas Bartlett, for contempt; and that all matters be referred immediately to the Supreme Court and heard en banc.

In our view, the contents of the application notice would, if admitted, provide additional support for the view that Ms Sheikh has lost all sense of proportion and judgement in relation to her underlying historical complaints and will seek every opportunity to relitigate those matters, however inappropriate may be the occasion or the terms in which she seeks to advance her arguments. We therefore refuse to admit the draft notice or to rule substantively on it because it does not add anything new or material to the issues with which we are concerned.

I should add that Ms Sheikh did not return to court at 2pm when this judgment was given. She sent Mr Cohen two emails which were read to us. They do not affect the substance of our judgments.

The Law

Section 42 is in the following terms:

“(1)

If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground—

(a)

instituted vexatious civilproceedings, whether in the High Court or the family court or any inferior court, and whether against the same person or against different persons; or

(b)

made vexatious applications in any civilproceedings, whether in the High Courtor the family courtor any inferior court, and whether instituted by him or another,or

(c)

instituted vexatious prosecutions (whether against the same person or different persons), the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order, a criminal proceedings order or an all proceedings order.

(1A) In this section—

“civil proceedings order” means an order that—

(a)

no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made;

(b)

any civil proceedings instituted by him in any court before the making of the order shall not be continued by him without the leave of the High Court; and

(c)

no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court;

“criminal proceedings order” means an order that—

(a)

no information shall be laid before a justice of the peace by the person against whom the order is made without the leave of the High Court; and

(b)

no application for leave to prefer a bill of indictment shall be made by him without the leave of the High Court; and

“all proceedings order” means an order which has the combined effect of the two other orders.

(2)

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.”

In considering the making of an order under s.42, this court is entitled to rely upon the conclusions of those judges who heard the underlying proceedings: see Attorney General v Jones [1991] WLR 859 at 863.

The power to restrain someone from commencing or continuing legal proceedings is a drastic restriction of his or her civil rights. That is why an order can only be granted by a High Court judge. But Jones is also authority for the proposition that:

“…there must come a time when it is right to exercise that power, for at least two reasons. First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; secondly, the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances, and should not be squandered on those who do not.”

When exercising its discretion as to whether or not to make an order under s.42, the court will assess where the balance of justice lies, “taking account on the one hand of the citizen’s prima facie right to invoke the jurisdiction of a civil court and on the other, a need to provide members of the public with a measure of protection against abusive and ill-founded claims. It is clear from s.42(3) that the making of an order operates not as an absolute bar to the bringing of further proceedings but as a filter”: see Attorney General v Barker [2000] 1 FLR 759 at paragraph 2.

In Barker, Lord Bingham CJ defined “vexatious” in the following way:

“…The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process…”

In considering the condition required by s.42, that proceedings have to be brought “habitually and persistently” in order for such an order to be made, in Attorney

I now turn to apply those principles of law to the issues which arise in this case.

Issue 1: Has Ms Sheikh habitually or persistently and without any reasonable groundinstituted vexatious proceedings, or made vexatious applications in any civilproceedings?

Habitual/Persistent

There can be no doubt that Ms Sheikh has habitually and persistently instituted proceedings and/or made applications. I attach as Appendix 1 to this judgment a spreadsheet, originally Exhibit TB3 to the witness statement of Thomas Bartlett served on behalf of the Attorney General. This identifies, in chronological order, those judgments against Ms Sheikh which can still be found. As at the time of the judgment of Jay J in June 2018 (Tab 31), there were 31 such judgments. This is not an exhaustive list: there are references to a number of other judgments which could not be tracked down.

It will be seen from Appendix 1 that Tabs 1 and 2 concerned her unsuccessful attempt to overturn the results of a solicitors’ disciplinary tribunal. As I have noted, she was eventually struck off the Solicitors Roll in 2009. Tabs 3-5 concern the Red

The requirement that the respondent has been responsible for the habitual/persistent institution of proceedings (to say nothing of the making of applications within those proceedings) is therefore amply made out.

Without Any Reasonable Ground

In the judgments identified in Appendix 1, judges have regularly complained about the groundless basis of Ms Sheikh’s claims and applications. There are at least six examples of cases in which the judges have explicitly certified that they were “totally without merit”.

Those examples are:

These examples therefore provide ample evidence that Ms Sheikh’s claims and applications are instituted without any reasonable grounds. i)3.3 Particular Findings of Vexatious Conduct

As might be expected after such a lengthy period, and such a marked lack of success, there are numerous findings of vexatious conduct or abuse of process on the part of Ms Sheikh. It is unnecessary to set them all out. It is also important to guard against double-counting and repetition.

However, particular (and separate) examples of adverse findings relating to Ms Sheikh’s vexatious conduct are as follows:

Additionally, in the course of his judgment, Turner J said:

“26…In any event, I can discern no substantive merit lurking behind the procedural clutter of these initiatives.

27.

The same must be said of her attempts to persuade me to revisit the orders and judgments of the court in the Red River litigation. Her avenues of appeal against the decisions in respect of which she continues to fight so passionately have long since been completely exhausted. I am in no doubt that the stress of this litigation combined with its financially catastrophic outcome has had the profoundest impact upon Miss Sheikh. It is to her credit that, notwithstanding the depth of her feelings, she was able to articulate her case to me with all due courtesy and presentational restraint. Unhappily, however, the substance of her allegations in this case are characterised by a complete failure of objectivity. She continues to assert that Lord Phillips of Worth Matravers, Sir Terence Etherton MR, Henderson LJ and Briggs LJ conspired together to steal her title to the development site and then shared between them the profit of £64,000,000. She further accuses them of torturing and unlawfully killing her mother. There is something almost poignant in the absurdity of these allegations based, as they are, upon no discernible evidence. At one point, Miss Sheikh submitted to me that the fraud was "too clever to be seen". She does not, however, entertain the rather more mundane possibility that the reason it cannot be seen is because it does not exist.

28.

There are some unlucky people for whom litigation becomes akin to an addiction; harmful, destructive and allconsuming. As with all other compulsions, the adverse impact is not only upon the sufferer but also upon those around them.”

He identified Ms Sheikh as one such addict. Having heard Ms Sheikh make the identical submissions to us this morning, with the additional allegation that this court was acting under the direct instructions of the Lord Chief Justice, I respectfully agree with his analysis.

Turner J’s conclusion was echoed by Jay J in the judgment at Tab 31 to which I have already referred. He said at [14]:

“The only matter that I need to decide on this material is whether the first claim… is frivolous, vexatious and/or totally without merit. I am completely satisfied that it is all of those things for a number of quite obvious reasons. The claim is plainly abusive because it is an attempt to relitigate the defendant’s underlying concerns, which were determined conclusively against her by Henderson J back in April 2010. It is plainly and obviously an attempt to circumvent the GCRO imposed by my judicial colleagues on several occasions. Moreover, the claim is obviously time-barred. So I would hold up, and I have jurisdiction so to hold, that this set of proceedings is totally without merit. The appeals sought to be brought within those proceedings are totally without merit.”

At [19] Jay J said that Ms Sheikh was “plainly a vexatious litigant”.

Accordingly, even allowing for any double-counting, I must conclude that Ms Sheikh has been guilty of vexatious conduct on a grand scale.

Summary

For the reasons summarised in the previous three sub-sections of this judgment, I am in no doubt that Ms Sheikh has habitually or persistently and without any reasonable ground instituted vexatious proceedings or made vexatious applications. Indeed, beyond her forlorn attempt to reargue the Red River litigation for the umpteenth time, Ms Sheikh offered no basis for any other conclusion. As she herself said, albeit in a slightly different context, “once the Red River fraud falls away, every single thing falls away”.

Issue 2: Is it appropriate for the Court to make an order against Ms Sheikh pursuantto Section 42 of the Senior Courts Act 1981?

This is the balancing exercise referred to by Lord Bingham in Barker.

The starting point is my finding at paragraph 27 above, that Ms Sheikh has habitually or persistently without any reasonable ground instituted vexatious proceedings or made vexatious applications.

Secondly, that conduct has caused considerable cost and inconvenience to numerous other parties. This was a point made by Turner J in the judgment at Tab 22 of Appendix 1. But a wider picture can be seen by noting all of the defendants or respondents to Ms Sheikh’s applications from Appendix 1 itself.

Thirdly, there is also the question of the cost and inconvenience to the court. This was a factor first raised in Jones, at a time when the funding of the legal system was, in real terms, much greater than it is today. The Court Service is desperately short of funds. In its current financial circumstances, it is nothing short of a miracle that it provides the service that it does. Every litigant like Ms Sheikh who takes up valuable time and resources for her vexatious litigation is taking those resources away from someone who deserves them. It is an abuse of the court’s process; it is also an abuse of the rights of those citizens who need recourse to the courts as a matter of urgency, and find themselves prevented from coming to court by another of Ms Sheikh’s vexatious claims.

What falls to be weighed in the scales on the other side? What are the reasons why the court should not make the order? None have been put forward by Ms Sheikh, except (as I have said) for the repeated attempts to raise the moribund allegations in the Red River litigation. Mr Cohen, however, properly raised some matters which Ms Sheikh might have put forward in opposition to the order. I deal with each in turn.

First, it might be said that it is an extreme remedy to make a s.42 order against Ms Sheikh. The answer to that is twofold. First, this is an extreme case. Its extremity can perhaps best be encapsulated by the judgment of Turner J at Tab 22 when at [30], he said:

“In her self-appointed role as champion of the common man and woman against the forces of institutionalised evil, Ms Sheikh has made no secret of her future intentions. She seeks permission ‘to intervene into every case in the UKSC, past and pending, where the law applied in that case conflicted with the precedent established by Briggs’ Fraudulent Instrument (which is probably every single case in history). Where the case has already been determined, it should be set aside’.”

Secondly, lesser remedies have been tried, particularly the CRO first imposed by Burnett J in 2009 (Appendix 1, Tab 10). Manifestly, they have not worked. One indication of that has been Ms Sheikh’s involvement in various Employment Tribunal and Employment Appeal Tribunal cases, referred to below, in the passages of this judgment where I consider the form of the s.42 order.

Thirdly, I have considered Ms Sheikh’s rights under Article 6. I have concluded that, on the extreme facts of the present case, it would not be disproportionate to make the order sought. Ms Sheikh’s self-confessed intention to intervene in every UKSC case – and plenty of others too - cannot be permitted to continue. An order under s.42 is therefore proportionate, necessary and appropriate.

Issue 3: What terms should any order include and for how long should it last?

A draft order which has been provided by the Attorney General, divides into three substantive parts. I deal with each in turn.

The first part includes paragraphs 1 – 4 in the following terms:

“1)

The general Civil Restraint Order made against the Defendant on 15^th July 2009 by the Honourable Mr Justice Burnett (and thereafter extended on 26^th July 2011, 12^th June 2013, 3^rd July 2015, 13^th July 2017 and 7^th June 2018) is discharged.

2)

No civil proceedings shall be instituted in any court or tribunal by the Defendant without the leave of the High Court.

3)

Any civil proceedings instituted by the Defendant in any court or tribunal before the making of this order shall not be continued by her without the leave of the High Court.

4)

No application (other than one for leave under section 42(3) of the Senior Courts Act 1981) shall be made by the Defendant, in any civil proceedings instituted in any court or tribunal by any person, without the leave of the High Court.”

In my view, these parts of the order flow from my decision in principle. I should confirm that, for the avoidance of doubt, and in accordance with the decision of this court in Attorney General v Mensah [2004] EWHC 1441 (Admin), this part of the order applies to all proceedings in any tribunals, including in particular the Employment Tribunal and the Employment Appeal Tribunal. I note that Ms Sheikh has recently sought to involve herself in various ET/EAT proceedings in which she has no legitimate interest, on the basis that it may be a way round the civil proceedings CRO. This form of order will not permit her to do so, unless she has prior permission.

The second part of the draft order includes paragraphs 5 and 6, which relate to criminal proceedings and are in the following terms:

“5)

No information shall be laid before a justice of the peace by the Defendant without the leave of the High Court.

6)

No application for leave to prefer a bill of indictment shall be made by the Defendant without leave of the High Court.”

In my view, it is appropriate to make an order in these terms. That is because the allegations which Ms Sheikh says arise out of the Red River litigation are allegations of criminal conduct. She has in the past shown herself adept at exploiting loopholes in the scope of previous CROs. Accordingly, this part of the order prevents her being involved in any criminal proceedings (save of course as a defendant). As a consequence of something Ms Sheikh said in one of the emails noted at paragraph 8 above, we emphasise that this prevents Ms Sheikh from undertaking any such activity in relation to criminal proceedings as from this afternoon.

The third part of the draft order are paragraphs 7 and 8. They are in the following terms:

“7)

The Defendant is prohibited (whether personally or through an agent or any other third party) from:

a.

issuing, acting in or conducting any claim, any application or any appeal in any proceedings in any court, on behalf of any party other than herself; and

b.

from acting or holding herself out to act as a McKenzie Friend in any proceedings in any court.

8)

For the avoidance of doubt, this order applies to the Defendant acting in her own name or to any alias or other name that she might adopt.”

In Noueiri v Paragon Finance PLC (No.2) [2001] EWCA Civ 1402, the Court of

I initially had a concern about the width of paragraph 7(a), and the inclusion of the words ‘acting in’ (I had no qualms about the rest of 7(a), (b) or 8, which are clearly justified in any event). This was because Ms Sheikh had said in an email that 7(a) might prevent her from obtaining employment. However, for two reasons, I have concluded that the order should be made in these terms.

First, the whole purpose of the order is to prevent Ms Sheikh from appearing in court or acting in litigation of whatever sort, unless she has prior permission. She cannot appear as an advocate anyway (because she is no longer a solicitor). Neither can she carry out litigation business (for the same reason). She will not be able to act as a McKenzie Friend because the whole purpose of the order is to stop her appearing in court without prior permission. On that analysis, there is therefore nothing relevant left in respect of which she could legitimately obtain employment, so no damage to her employment prospects can arise.

Secondly, Ms Sheikh has shown herself to be adept at finding loopholes and in using other people’s claims as a vehicle for her own: see the express finding to that effect by Hickinbottom J, noted at paragraph 23(f) above. I am in no doubt that, if the order did not include these provisions, including the words ‘acting in’, she would materialise in court, or behind the scenes in some guise or other, providing purported assistance to others in the hope that it will advance her own cause. That cannot be permitted.

In this regard, I note from the papers that Ms Sheikh purported to act as an advocate in a recent county court case in Leeds, Nanglu and another v Craig Wardman and another. The transcript of the hearing before DJ Neaves on 23 August 2018 and his detailed judgment of the same day makes clear the damage and wasted time caused to everyone – the parties, the judge, and other court users – by Ms Sheikh’s wilful intransigence as an advocate. She turned a detailed costs assessment into a state trial by raising a whole host of irrelevant and misconceived matters. Whether she was acting as a McKenzie friend or, as she says, “a prospective employee” of the relevant firm is irrelevant for this purpose; what matters is her inexcusable conduct, as evidenced by the transcript.

For these reasons, notwithstanding their width, and because anything less comprehensive would be impossible to police, I agree that the order should include paragraphs 7 and 8 in full.

Finally, paragraph 9 of the draft order asks that it remains in force “indefinitely”. I am in no doubt that that is the right order to make. Such has been Ms Sheikh’s conduct over the last decade that nothing other than an indefinite order is justified. Furthermore, there is no basis on which the court could make an order limited in time, because there is currently no evidence before the court that Ms Sheikh’s underlying compulsion might at some date in the future be brought under control.

Of course, the making of an order in these terms does not preclude an application to vary it, sometime in the future, although any such application would require permission according to the terms of the order itself.

For these reasons, I would make the order under s.42 in the form requested by the Attorney General.

I agree.