IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
ADMINISTRATIVE COURT (KBD)
Royal Courts of Justice
Strand
London, WC2A 2LL
BEFORE:
LORD JUSTICE BEAN
MR JUSTICE LAVENDER
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BETWEEN:
ANTHONY ALEXANDER
Claimant
- and -
HM ATTORNEY GENERAL
Defendant
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The Claimant appeared in person
MS N PARSONS appeared on behalf of the Defendant
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JUDGMENT
(Approved)
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LORD JUSTICE BEAN: More than thirty years ago in 1993, Halifax Building Society bought a claim for possession against Mr Alexander. A possession order was apparently made in November 1998. Much litigation followed in the ensuing years.
The chronology indicates that one hearing took place before me, I was then not a full-time judge but a Recorder sitting in the Central London County Court in 2003. At the outset of this hearing, I enquired of Mr Alexander whether he was asking me to recuse myself from the hearing and he very courteously said he was not. Lavender J, who was appointed a High Court judge in 2016, had a much more recent hearing in which Mr Alexander appeared before him, but again Mr Alexander confirmed that there was no objection to his sitting on the case.
This application is to discharge or vary an order made under section 42 of the Senior Courts Act 1981 dated 26 November 2003 restraining Mr Alexander from bringing any proceedings without the permission of a High Court judge. We have the judgment of the Divisional Court, Kay J (as he then was) and Mackay J. It is not necessary to repeat its content. In 2009, an application to vary or discharge that order was refused by Lewis J.
In 2014, Mr Alexander was given permission to bring a housing claim against Westminster City Council. The case first came before a district judge and on appeal to Her Honour Judge Faber. Mr Alexander was successful on that appeal. That was not the only occasion on which he was successful in litigation, or alternatively was at least given permission to bring a case.
In 2015, he was given permission to appeal on a pension credit issue to the first-tier tribunal and was also given permission to apply for an injunction restraining eviction. In 2016, he again applied to the Divisional Court to vary or discharge the order. That Divisional Court was comprised of Sharp LJ and Thirlwall J (as they respectively then were). The substantive judgment was given by Thirlwall J, and it is relevant to set out some (but not all) of what she said:
Mr Alexander's primary application is for the order to be discharged altogether for reasons with which I will deal in a moment.
His secondary position is that if the court is not minded to discharge the order now, a time limit should be put on it. He points to the fact that if this were a civil restraint order, it would automatically be of finite duration, although he accepts that it may always be continued.
He also points to the fact that in one or two cases, civil proceedings orders have been made for finite periods. He mentioned one case where the order was one of 12 years duration.
It is I think unhelpful to seek to import into civil proceedings orders, practice derived from the regime for civil restraint orders. Orders under section 42 are available only on the application of the Attorney General and in specific circumstances. The judgments of the court make clear the reasons why the order was made in this case.
Civil restraint orders (general or extended) may be made of the court's own motion or upon application by a party, and unless an order to continue is made by the court, they lapse by effluxion of time ...
... 23. Mr Alexander brings his application on three grounds.
First that the order has been in place for 12 years, now nearly 13 and has been complied with.
Both of those statements are true, but they do not found an argument that there has been a change of circumstances, still less that there are entirely new circumstances. On the contrary, the demonstrate that the courts have acted as an effective filter on this litigation, in other words the order is achieving its purpose.
The effluxion of time and compliance with the order are relevant factors which the court will take into account in deciding whether to discharge the order, but they do not of themselves constitute new (still less entirely new) circumstances ...
... 30. In the course of his statement in support of his application, Mr Alexander says in terms that he accepts that the litigation he conducted in the years preceding the making of this order did constitute vexatious litigation within the meaning of the Act, and he accepts that it was misconceived and not conducted appropriately. He also says that he now has a more measured approach to litigation which is reflected in the fact that he has been successful in the majority of his requests and applications. However, it is incontrovertible that he continues to make ill-judged applications from time to time.
…….I also note notwithstanding his acceptance that the litigation was vexatious, and that the judge refused his application for an injunction in 2016, he has sought to explain how the litigation came to pass and to give reasons for having made the application. This suggests to me that he continues to be of the view that he was right about those matters, although he accepts quite rightly the decision of the court ...
... 34. In my judgment, having considered the whole of the chronology up to and including today, I am satisfied that although there have been significant changes in Mr Alexander's approach, his judgment remains unreliable and leads him to pursuing hopeless points.
Turning to the third ground of the application which Mr Alexander describes as the unintended prejudicial effect of an order under section 42. Mr Alexander refers to the mere fact that being subject to a section 42 order meant that judges and opponents take against.
This is a rather generalised comment, but it seems to me (as it seemed to Lewison J), the fact is that every time he appears before a court, he does so with the permission of a High Court judge. This I think gives significant support to Mr Alexander, who is able to say that he has that permission and can develop his applications on the basis of it.
In any event, I cannot see that there is a prejudicial effect. It is certainly not a new circumstance; it is the inevitable consequence of the existence of the order.
In my judgment, there is no merit in any of the three grounds Mr Alexander has brought before us. I observe that the amount of judicial time that is spent and has been spent on Mr Alexander's applications over the years is very significant, and that is the burden that supervising judges shoulder, so as to ensure that the wider public and the courts generally are effectively protected from vexatious litigation. It also ensures beyond doubt that Mr Alexander has proper access to justice whenever that is appropriate.
It follow that I would refuse the application to discharge the order. For the same reasons, I would refuse the secondary position which is that there should be a specific time limit. Mr Alexander is not shut out from making a further application in due course, but it would not assist one jot were I to suggest that time limit now.
Any future application will be considered by the court on the basis of the facts at that time."
The phrase, "Entirely new circumstances" used by Thirlwall J in that judgment is a reference back to the judgment given by Lord Woolf CJ in HM Attorney General v Covey [2001] EWCA Civ 254 when he said this:
"Before leaving the present applications, I should add a comment about the fact that the orders which are made are orders unlimited in time in the case of both applicants. This a matter of which Mr Covey in particular complained, both in his written and oral submissions. In my judgment, the position is that the court always has a jurisdiction to vary orders which have been made in the light of entirely new circumstances. However, that the orders should be made in the first instance in cases of this sort, unlimited in period of time, is, in my judgment, fully justified. The fact that there are the orders prevents an applicant conducting litigation which is vexatious. If the order achieves that purpose, then it is a safeguard against which those who would be subject to the inconvenience of the litigation which would otherwise occur are entitled to be protected. They should not be put in a position where, because of the expiry of a limited period of time, they should be again exposed to unjustified litigation. I would therefore dismiss both these applications for permission to appeal."
Mr Alexander told us this morning something about the 2016 hearing. He says that he had accepted before the Divisional Court that the filter system of section 42 was working well in his case. He had been given permission on occasions to bring litigation, sometimes with a successful result. He described himself to Sharp LJ and Thirlwall J, he said as "a fully satisfied customer."
In early 2020, Zacaroli J (as he then was) became the supervising judge nominated by the Chancellor of the High Court for applications brought by Mr Alexander for permission pursuant to the terms of a section 42 order. That judge took the place of Arnold J who had by then been appointed to the Court of Appeal.
The pattern continued of some applications being refused and some granted. For example, in 2021, Mr Alexander made an application which was granted for permission to bring a claim against HMCTS for repayment of an allegedly overpaid fine. In March 2022, he applied for permission to bring a damages claim against Westminster City Council “because of their treatment of him since 2003." That was refused by Zacaroli J.
In July 2022, the application was made which led to the present hearing. Mr Alexander applied on paper in the usual way to his supervising judge, Zacaroli J, to vary or discharge the section 42 order. Zacaroli J refused to make that order on the papers but allowed Mr Alexander to renew that application at an oral hearing. Such applications are for permission and are ex parte in the first instance, so that ex parte oral hearing took place before Zacaroli J and Mr Alexander was granted permission to make an application to this court on notice to the HM Attorney General to vary or discharge the section 42 order.
Zacaroli J's reasons are recorded in an order sealed on 23 March 2023. He said this:
"In my order of 28 July 2022, I refused Mr Alexander permission to apply to the Divisional Court because I considered he had not demonstrated there were entirely new circumstances justifying setting aside or variation of the CRO. I noted that he had made an application to the Divisional Court in 2016 with the permission of Arnold J, and the grounds on which he relied before the Divisional Court were broadly the same grounds as those he relied on before me.
I noted however that I was nevertheless conscious that 19 years is a very long time for the CRO to remain in place and that Mr Alexander's application notice purported to identify factors which may support his contention, and it may be that he has in mind other matters that would support the contention that there has been a change of circumstances.
For that reason, I indicated that Mr Alexander could attend in person at a shorter hearing to renew the application in the event that Mr Alexander is unable to attend a hearing on 2 March 2023. The principal point made by Mr Alexander at the hearing, was that he found the continued existence of the CRO (particularly as he reaches his later seventies) to be a considerable weight on him mentally. He felt that he was seen in a negative light by others who knew about the existence of the order.
He wants an order that it is oppressive to be subject to the same restraint order for 20 years, particularly when any equivalent order today under the civil restraint order jurisdiction would be time limited, albeit subject to the possibility of extensions. I ask Mr Alexander what he would do if the restraint was lifted, and he said he would want to bring proceedings against the Royal Bank of Scotland, and I think the Official Receiver, in relation to events that happened in 1999.
I pointed out to him that the almost inevitable consequence of doing so (given the obvious limitation issues involved) would be that he would cause costs to be incurred by third parties which would then be awarded against him. I further pointed out that this reinforced the point made by the Divisional Court in 2016, that the regime put in place by the CRO is working well and protecting not only others from unmeritorious applications made by him but also protecting him from the costs consequences of him doing so.
Nevertheless, I have decided to grant him permission taking into account in particular three things. First, there is something to be said against an order limiting a person’s free access to the courts continuing for a period in excess of 20 years. Second, it is not for me to decide that question but only to decide whether the application is not an abuse, and that there are reasonable grounds for making the application. Third, it may be possible for the order to be varied as opposed to being discharged altogether, in a way which address Mr Alexander's principal concerns while protecting others (and him) in relation to specific matters or types of matters."
On 18 July 2024, Swift J as the lead judge of the Administrative Court gave directions designed to lead to the present hearing. At about the same time, Mr Alexander applied to Zacaroli J (at least informally) for permission to adduce further evidence in the present case. Mr Alexander showed us a reply from the clerk to Zacaroli J saying that the judge took the view that he should have that permission, but that no formal order to that effect was necessary. In fact, we have a great deal of material from Mr Alexander setting out the history of litigation on various issues and applications made during the last 25 years.
We also have a skeleton argument from him and a further helpful one-page document handed up this morning. He also addressed us orally. He said this morning at one point that he would like us to adjourn the hearing so that he could adduce further evidence of the consequences for him and his wife of what has been done to them over the last 25 years, but it seems to me that what Mr Alexander and his wife have endured is not a consequence of the section 42 order made in 2003, but is rather a consequence of the original possession order made in 1998.
I cannot see that any further material about the consequences of the possession order could affect decisions on whether to discharge or vary the section 42 order. Mr Alexander said that he would also wish to adduce further evidence in response to the amended skeleton argument from the respondent and the recent chronology served by the respondent of applications since 2015. As Mr Alexander put it, "They want to go back to 2015. I want to go back to 1999."
But with respect to Ms Parsons whose written material is clear and helpful, there is really nothing new in the material recently served, either the amended skeleton argument or the respondent's chronology. They demonstrate the same pattern of litigation as Mr Alexander's own documents. As I have already said, he has made over the years, both before and after 2016, numerous applications with one of three possible results. Some applications for permission to bring proceedings were refused; some were allowed but nevertheless led ultimately to defeat in court or in a tribunal; some were allowed and led ultimately to success in court or in a tribunal.
We proceeded to consider the application to discharge or vary on its merits. We did not think that any useful purpose would be served by adjourning to another date. In oral submissions, Mr Alexander said that he was not pressing the application to discharge the section 42 order immediately. Rather he asked that some time limit should be imposed.
An indefinite order has been held not to be objectionable in principle, see the passage from the judgment of Lord Woolf CJ in Covey to which I have already referred. Its purpose, as he says, is to protect the courts and to protect prospective defendants from vexatious litigation. A section 42 order does not of course act as a complete bar to access to the courts. It simply requires the permission of the supervising judge.
If I may say so, it was a perceptive remark made by Mr Alexander to Sharp LJ and Thirlwall J, that the system was then working well. Sometimes he has been successful in his applications, sometimes not, but even since 2016 he has been refused permission to bring proceedings on several occasions. For my part, the ratio of Covey (in particular paragraph 64), is that entirely new circumstances are required for an order to be varied or discharged and the passage of time is not in itself an entirely new circumstance.
It may be that the court will one day have to consider the case of a formerly vexatious litigant who for many years makes no attempts at all to bring litigation (or at any rate no unsuccessful attempts) and then applies to the court to discharge the order on the grounds that it is no longer needed. Such a case will have to be decided on its merits should it arise, but it is not the present case.
I am also concerned by the fact that Zacaroli J indicated in his reasoned decision of March 2023 to which I have referred, that Mr Alexander's wish is to bring proceedings against Halifax and Bank of Scotland in relation to events occurring now almost a quarter of a century ago and the consequences of those events. It is not unreasonable in my view that if he wishes to launch such litigation with the obvious problems caused by the Limitation Act 1980, he should have to persuade a High Court judge that it is a case in which he should be given permission to proceed.
In my judgment, matters have not really changed since the application to the Divisional Court in 2016. I agree with all that Thirlwall J said on that occasion and I consider that it is still applicable. Despite the courtesy with which Mr Alexander addressed us this morning, I would refuse the application to discharge or vary the order under section 42.
MR JUSTICE LAVENDER: I agree.
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