"42.––(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 reasonable ground––

"(1A) In this section––

"civil proceedings order" means an order that––

"(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."

"(3) Leave for the institution or continuance of, or for the making of an application in, any civil proceedings by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application."

-------------------------------------------------------------------------------"It is no doubt arguable that if Moses J did address his mind to this point, he can hardly have intended that every single interlocutory application made by Mr Johnson in the county court proceedings (for instance, for permission to amend his pleadings) should have to be solemnly sanctioned in advance by a High Court judge."-----------------------------------------------------------------------------------------------------------------

-------------------------------------------------------------------------------

"It seems to me that once he received from Moses J the authority to bring the proceedings, as he did, he ought to be under no further inhibition with regard to the proceedings than any other litigant, up to appeal."

"1.––(1) There are to be rules of court (to be called "Civil Procedure Rules") governing the practice and procedure to be followed in––

(2) Schedule 1 (which makes further provision about the extent of the power to make Civil Procedure Rules) is to have effect.

(3) The power to make Civil Procedure Rules is to be exercised with a view to securing that the civil justice system is accessible, fair and efficient."

‘9.––(1) A court the practice and procedure of which is governed by Civil Procedure Rules is referred to in this Act as being "within the scope" of the rules; and references to a court outside the scope of the rules are to be read accordingly.

(2) In this Act––

"1. Among the matters which Civil Procedure Rules may be made about are any matters which were governed by the former Rules of the Supreme Court or the former county court rules (that is, the Rules of the Supreme Court (Revision) 1965 and the County Court Rules 1981)."

"5 .––(1) Civil Procedure Rules may apply any rules of court which relate to a court which is outside the scope of Civil Procedure Rules.

(2) Any rules of court, not made by the Civil Procedure Rule Committee, which apply to proceedings of a particular kind in a court within the scope of Civil Procedure Rules may be applied by Civil Procedure Rules to other proceedings in such a court.

(3) In this paragraph "rules of court" includes any provision governing the practice and procedure of a court which is made by or under an enactment.

(4) Where Civil Procedure Rules may be made by applying other rules, the other rules may be applied––

"6. Civil Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions."

"7. The power to make Civil Procedure Rules includes power to make different provision for different cases or different areas, including different provision––

"7. Vexatious litigants

"institution or continuance of, or the making of an application in civil proceedings".

--------------------------------------------------------------------------------------------------------------------------------------------------------------"The defendant then issued a summons in the Queen’s Bench Division seeking to amend Ognall J.’s order by deleting the words "in the Torquay County Court," together with the relevant case number. That summons came before Sir John Wood on 13 December 1994, when the plaintiff submitted that Ognall J. had had no power to make the order he did, so that it was a nullity which could not be amended. Sir John Wood, being of the opinion that there was an arguable point on jurisdiction, adjourned the summons so that an amicus curiae could be instructed.

The matter came back before Sir John Wood in April 1995, when the amicus made submissions in support of the defendant. The judge’s view was that Ognall J. had had no power to set aside the leave given by Tuckey and Bell JJ., so that his order was a nullity, which he, Sir John Wood, had no power to amend."---------------------------------------------------------------------------------------------------------------------------------------------------

-------------------------------------------------------------------------------"I approach the question in this way. The power expressed in Ord. 32, r. 6 can only apply to an order made in proceedings in which the person seeking to have it set aside is either a party or entitled to be made one. The court could not accede to an application made by a person who had no locus standii to make it. On an application under section 42(3) for leave to institute proceedings the proposed defendant is neither a party to the application nor is he entitled to be made one."

"The Attorney-General was in a different position because it was he who had brought the proceedings in which the applicant had been declared a vexatious litigant. It was he, and only he, who had the locus standii to appear on the application; see also the observations of Brooke J. in In re C., The Times, 14 November 1989."

-------------------------------------------------------------------------------"Moreover, I believe that this conclusion is confirmed by a proper appreciation of section 42(4). That subsection provides that no appeal by a vexatious litigant shall lie from a decision refusing leave under subsection (3). Mr. Crowther submitted that that provision impliedly permitted an appeal by a defendant to the proceedings, on which footing he must equally be entitled to apply to set the leave aside. I do not agree. I think that section 42(4), by referring to an appeal only by the vexatious litigant, confirms that the proposed defendant is not entitled to be made a party to the application under section 42(3)."

‘Mr Hamilton also argues that, albeit he must concede on the authorities that this court has an inherent jurisdiction, it does not derive its jurisdiction strictly from the Rules of the Supreme Court. He points out that although Ord. 59, r. 10(1) gives this court "all the powers and duties as to amendment and otherwise of the High Court," when one comes to look at Ord. 18, r. 19, which is the rule which gives the court the power to strike out pleadings, that rule cannot apply to a notice of appeal because a notice of appeal is not a pleading. For myself, I think that strictly that is a correct reading of the rules, and it is noticeable that Staughton L.J. in the extract from his judgment which I read did not say categorically that the application could be made under the combined effect of those two rules. Nevertheless, although I believe that to be a correct interpretation of the rules, I regard it also as a technicality because it seems to me that the inherent jurisdiction of the court would be exercised on precisely the same basis as if Ord. 18, r. 19 strictly applied to notices of appeal.’-------------------------------------------------------------------------------------------------------------------------------------------------------------------

The argument advanced by Mr Kallipetis that the general words of para 4 of Sch 1 to the 1997 Act––‘Civil Procedure Rules may modify the rules of evidence as they apply to proceedings in any court within the scope of the rules’, confer a general power on the rule-making body to abrogate or limit a person’s right to legal confidentiality is to my mind quite unacceptable.

It falls foul of two principles. The first was stated by Lord Hoffmann in R v Secretary of State for the Home Dept, ex p Simms [1999] 3 All ER 400 at 412, [1999] 3 WLR 328 at 341 as follows:

-----------------------------------------------------------------------------------------------------------------------------------------------------------

"The second is similar. The presumption against Parliament intending to encroach on fundamental rights by general words applies still more strongly where the general words are merely delegating a power to legislate. In R v Secretary of State for the Home Dept, exp Leech [1993] 4 All ER 539 at 550, [1994] QB 198 at 211-212 Steyn LJ, delivering the judgment of the Court of Appeal, said:

There is also a strong presumption against Parliament intending a statute to operate so as to impair an existing substantive right (see Bennion Statutory Interpretation (3rd edn, 1997), pp 235-242)."

"an abuse of the process of the court in question and that there are reasonable grounds for the proceedings".

"Here, we are now one court and we are not considering a decision of a court of co-ordinate jurisdiction. We are considering a decision of this court. So far as the dictum of Grove J. is concerned, I can only say for myself that I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction. He is only bound to follow the decisions which are binding on him, which, in the case of a judge of first instance, are the decisions of the Court of Appeal, the House of Lords and the Divisional Court."

"II. RELEVANT DOMESTIC LAW

18. Order 19, rule 3 (1), of the County Court Rules ("the Rules"), as in force at the relevant time, states that any proceedings in which the sum claimed or amount involved does not exceed GBP 1,000 shall be referred for arbitration.

19. Order 19, rule 7 (1), (3) and (4), of the Rules provides as follows:

20. Order 19, rule 8 (1), of the Rules reads as follows:

21. ------------------------------------------------------------------------------------------------------------------------------------------------------

"22. Under the Civil Procedure Rules, which came into force on 26 April 1999, hearings, including those in small claims cases, are to be held in public. There is a discretion for the court to hold a hearing in private where:

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or person suffering from mental incapacity;

(e) it is a hearing of an application made without notice and it would be unjust to the respondent for there to be a public hearing;

(f) it involves non-contentious matters arising in the administration of trusts or in the administration of a deceased person’s estate;

(g) the court considers a private hearing to be necessary in the interests of justice."

"PROCEEDINGS BEFORE THE COMMISSION

23. Mr Scarth applied to the Commission on 2 February 1996. He alleged a violation of Article 6 § 1 of the Convention.

24. The Commission declared the application (no. 33745/96) partly admissible on 21 May 1998. In its report of 21 October 1998 (former Article 31), it expressed the unanimous opinion that there had been a violation of Article 6 § 1 of the Convention."

--------------------------------------------------------------------------------------------------------------------------------------------------------------

"AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

26. Article 6 § 1 of the Convention reads, so far as relevant, as follows:

27. The Government did not contest the opinion of the Commission on the allegations of breach of this provision (see paragraph 24 above)." -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"29. The Court sees no reason to disagree with the conclusion reached by the Commission. It holds that the denial of a public hearing at first instance of Mr Scarth’s case was not compatible with Article 6 § 1 of the Convention."

‘B. Point at issue

29. The point at issue is whether the absence of a public hearing before the arbitrator in the present case constituted a violation of Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

30. Article 6 para. 1 of the Convention provides, in its relevant parts, as follows:

31. The applicant claims that, although he clearly requested a public hearing in the case, he was denied a hearing on the merits. He points out that the Court of Appeal hearing was no more than consideration of whether to grant leave to appeal.

32. The Government accept that Article 6 applies to the proceedings, but submit that the hearing of the arbitration in private was not in breach of Article 6 as exclusion of the public was necessary because a public hearing "would prejudice the interests of justice". They claim that small claims are referred to arbitration because such a procedure enables disputes to be resolved speedily, informally and inexpensively and that if proceedings were heard in public at a standard county court trial, a wealthier party would use the threat of an order for costs as a weapon against the poorer party. The arbitration procedure is in fact designed to promote equality of arms in relation to small claims which also do not involve any issues of public interest or importance.

33. The Government further submit that, in any event, the hearing before the Court of Appeal made good any shortcomings before the Arbitrator. They underline that the Court of Appeal considered all of the factual and legal points advanced by the applicant and rejected each of them as unsustainable.

34. The Commission first notes that the parties agree that Article 6 para. 1 applies to the present case, and it finds that it does.

35. The Commission recalls that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6. This public character protects litigants against the administration of justice in secret with no public scrutiny, and it is also one of the means by which confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 para. 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (Eur. Court HR, Werner v. Austria judgment of 24 November 1997, Reports 1997-VII, p. 2510, para. 45).

36. The final sentence of Article 6 para. 1 of the Convention permits the exclusion of public from all or part of a trial in certain defined cases. The final case listed is that exclusion of the public is permissible "to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice".

37. The Commission notes that the test set up by those words is strict, and comprises a number of elements: the exclusion must be "strictly necessary in the opinion of the court", and there must be "special circumstances where publicity would prejudice the interests of justice". The European Court has stated that only "exceptional circumstances" could justify dispensing with a public hearing (Eur. Court HR, Stallinger and Kuso v. Austria judgment of 23 April 1997, Reports 1997-II, p. 680, para. 51).

38. In the present case, it is clear from the note of District Judge Elliott that he did not consider the exclusion of the public to be necessary at all: the test he applied - the test he was required to apply by the County Court Rules - was in effect whether there were reasons for derogating from the ordinary position that, in small claims cases, hearings were not to be public. The case was, as he expressed it, "no different from the usual ‘run of the mill’ arbitration disputes heard in any county court".

39. The Commission agrees that there were no "special circumstances" in the present case which would prejudiced the interests of justice if the hearing before District Judge Elliott had been public. It is true that the Government point to a number of factors which can affect the interests of justice - the need to resolve disputes speedily and inexpensively in particular - but those factors cannot be used to hollow out the fundamental importance of the right to a public hearing enshrined in Article 6. The Commission would add that it is in any event not readily apparent why the granting of a public hearing to those who request one would necessarily add to the time or expense of litigation, as in the bulk of cases the relatively informal arbitration proceedings could simply be opened to the public.

40. Accordingly, the Commission considers that no "exceptional circumstances" have been made out, such as to justify the denial of a public hearing in the applicant’s case.’

------------------------------------------------------------------------‘But the reasons given as to why courts nearly always sit in public may be of some significance. They were spelt out in the Court of Appeal by Lord Woolf MR in R v Legal Aid Board ex parte Todner [1999] QB 966 at 977e -

In the recent case of R v General Medical Council ex parte Toth 23rd June 2000 unreported, Lightman J adopted a similar approach when reviewing the General Medical Council’s approach to complaints against medical practitioners. He found that the general principles underlying the relevant statute and procedural rules were that -

Both appellants, and especially Mr Browne on behalf of the media, placed considerable reliance on Article 10(1) of the European Convention on Human Rights which reads -

It is recognised by everyone that when the Secretary of State made his decisions the Convention was not formally part of English law, and that is still the position today, but as Balcombe LJ said in Derbyshire County Council v Times Newspapers [1992] 1 QB 770 at 810 H "it has been stated on high authority that Article 10 is in effect the same as the English Common Law." One of the authorities to which he referred was Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, a Spycatcher case, where Lord Goff said at 283 -

So freedom of expression is a fundamental right already recognised by English law, to be restricted only to the extent necessary to meet some pressing social need.

In R v Ministry of Defence ex parte Smith [1996] QB 517, a case about homosexuality in the armed forces, Sir Thomas Bingham MR at 554 e agreed with counsel’s formulation of the proper approach to the issue of irrationality, namely -

Mr Ullstein submitted to us that the decision that the Inquiry should receive evidence in private interfered with the families’ freedom of expression because without sufficient reason it curtailed their right to receive information from other witnesses, and to impart information to the Inquiry as a result.

In Leander v Sweden [1987] 9 EHRR 433 the European Court was concerned with an applicant who had been refused a job because of information on file which was said to indicate that he was a security risk. At 456 paragraph 74, dealing with Article 10 under the heading "Freedom to receive information" the court observed -

That passage was relied upon by Mr Elvin for the Secretary of State, but we find it difficult to understand how it assists his case. On the face of it the Secretary of State is thereby prohibited, in the context of the present case, from restricting a family witness waiting to give evidence from receiving information that others who are currently giving evidence wish or may be willing to impart to him, namely an accurate account of what they are saying, not based simply on their own imperfect recollection after they have finished. Furthermore in Autronic AG v Switzerland [1990] 12 EHRR 485 the applicant was a company refused permission to receive uncoded TV programmes. The European Court at 499 said that Article 10 applies to profit making corporate bodies, and continued -

So, on the face of it, the present prohibition on reporting would appear to be a breach of Article 10.

The same approach was adopted by the European Court in VDSO v Austria [1994] 20 EHRR 56 which concerned the refusal to distribute a particular magazine with military periodicals distributed free to soldiers. At page 80 paragraph 27 the European Court said -

For the media Mr Browne pointed out that it too has a recognised right to receive and impart information without unnecessary interference by public authorities. In Attorney General v Guardian Newspapers [1990] 1 AC 109 Sir John Donaldson MR said in the Court of Appeal at 183 -

Similarly in The Observer and the Guardian v UK [1991] 14 EHRR 153 the European Court at 191 set out major principles distilled from judgments in relation to Article 10 -

-------------------------------------------------------------------------------------------------------------------------------------------------------

"No one doubts that there are circumstances when freedom to receive information or freedom of expression may have to be curtailed in the public interest. In a criminal trial information as to the identity of an informer, or as to the extent of his or her assistance, is an obvious example. The same may apply in relation to national security, medical records or disciplinary proceedings, but where these freedoms are to be curtailed the case for restriction must be strictly proved. Returning to the words of Lord Keith in the Derbyshire case there must be a pressing social need for the restriction and it must be no more than is proportionate to the legitimate aim pursued. Protection of vulnerable witnesses who may be otherwise unwilling to testify fully or at all may be a legitimate aim, but, as the applicants submit, politicians and those who work in the public service can reasonably be expected to stand up and be counted.

As we have said, Mr Elvin did place some reliance on Article 10(2), but we have difficulty understanding how that can be invoked in the circumstances of this case. The justification offered for the curtailment of the freedoms identified in Article 10(1) does not seem us to be persuasive and although, as Mr Ullstein concedes, those freedoms are not as fundamental as the right to life, which was under consideration in Ex parte ‘A’ they are important freedoms, curtailment of which is significant when examining the rationality of the decisions as a whole."

"(1) The general rule is that a hearing is to be in public.

(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.

(3) A hearing, or any part of it, maybe in private if––

(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness."

"HEARINGS

1.1 In Part 39, reference to a hearing includes reference to the trial.

1.2 The general rule is that a hearing is to be in public.

1.3 Rule 39.2(3) sets out the type of proceedings which maybe dealt with in private.

1.4 The decision as to whether to hold a hearing in public or in private must be made by the judge conducting the hearing having regard to any representations which may have been made to him.

1.5 The hearings set out below shall in the first instance be listed by the court as hearings in private under rule 39.2(3)(c), namely:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following circumstances and in accordance with a procedure prescribed by law:"

--------------------------------------------------------------------------------------------------------------------------------------------------------------

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence"--------------------------------------------------------------------------------------------

"or fleeing after having done so."

-------------------------------------------------------------------------------

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest"------------------------------------------------------------------------------------

-------------------------------------------------------------------------------

"According to the Commission, Article 5 § 1(e), apart from making medical reports necessary, involves a simple reference back to domestic law without laying down any minimum procedural guarantees.

45. The Court for its part considers that the words ‘in accordance with a procedure prescribed by law’ essentially refer back to domestic law; they state the need for compliance with the relevant procedure under that law."

--------------------------------------------------------------------------------------------------------------------------------------------------------------

"46. Whether the procedure prescribed by that Act was in fact respected in the applicant’s case, is a question that the Court has jurisdiction to examine. (see, for example, the above-mentioned De Wilde, Ooms and Versyp judgment, pp. 38-39, §§ 69-70, and the above-mentioned Engel and others judgment, p. 28, § 68 in fine). Whilst it is not normally the Court’s task to review the observance of domestic law by the national authorities, it is otherwise in relation to matters where, as here, the Convention refers directly back to that law; for, in such matters, disregard of the domestic law entails a breach of the Convention, with the consequence that the Court can and should exercise a certain power of review (see the decision of the Commission on the admissibility of Application no. 1169/61, X v. Federal Republic of Germany, Yearbook of the Convention, vol. 6, pp. 520-590, at p. 588)."

‘In the Court’s view, the main issue to be determined in the present case is whether the disputed detention was "lawful", including whether it complied with "a procedure prescribed by law". The convention here refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof,’--------------------------------------------------------------------------------------------------------------------------

"1. Everyone has the right to respect for his private and family life, his home and his correspondence liberty and security of person.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles on international law."

--------------------------------------------------------------------------------------------------------------------------------------------------------------

‘A. Alleged interference with the applicant’s right to respect for her private life and home

36. It was not disputed that the entry of the police into the applicant’s home on 3 October 1989 constituted an interference with her right to respect for her private life and home. The Court sees no reason to hold otherwise.

2. Justification of the interference

37. Such interference breaches Article 8 unless it is "in accordance with the law", pursues one or more of the legitimate aims referred to in Article 8 § 2 and is, in addition, "necessary in a democratic society" to achieve the aim or aims in question.’

(a) ----------------------------------------------------------------------------------------------------------------------------------------------------------

‘(c) "Necessary in a democratic society"

49. The applicant contended that, since section 17(1)(e) of the 1984 Act enabled the police to enter private premises to save life or limb or prevent serious damage to property, the power of the police to enter private premises in circumstances other than when there was a risk of physical harm to persons or property was not "necessary in a democratic society".

Notwithstanding this contention she argued that, if the police chose to exercise their power of entry when there was no risk of physical injury or damage to property - which entailed a major infringement of the rights guaranteed under Article 8 of the Convention - the justification for the interference should be significant and indisputable. Furthermore, justification for the entry had to be made by reference to the degree of risk that existed at the time the police entered the property. In the present case, since there was no history of violence between the applicant and her ex-husband and the only person present at the house at the time of entry was her seventy-four-year-old mother, the risk of harm was minimal or non-existent. Weighing this against the seriousness of the interference, the actions of the police could not be regarded as proportionate. In addition, they demonstrated such a lack of impartiality as to render the exercise of the powers disproportionate to the aim pursued.

50. The Government claimed that, because there was a clear pressing social need to prevent disorder or crime, the power of the police to enter private premises without permission to prevent a breach of the peace was "necessary in a democratic society". With regard to the present case, they submitted that the interference was proportionate to the legitimate aim pursued, as demonstrated by the fact that the visit to the applicant’s home by her former husband to collect his possessions was made in the genuine, albeit mistaken, belief that she had agreed to the arrangement; the ex-husband’s solicitors feared that a breach of the peace might occur because of the history of the court proceedings between their client and the applicant; the police officers attended the applicant’s home not to assist in the removal of the property but to maintain the peace; they acted in a discreet and reasonable manner; and the applicant’s conduct on her return did call for their intervention.

51. The Commission, placing emphasis on the risk of disturbance that might have arisen if the applicant’s ex-husband and his party had gained access on their own, found that the measures taken by the police officers - who acted, in its opinion, with restraint throughout the incident - were not disproportionate to the legitimate aim pursued. Although the police officers had had limited possibilities of knowing the precise nature of private relations between the couple, they were under a duty to take seriously an indication from one party that trouble might arise.

52. The Court recalls that, according to its established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, inter alia, the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, pp. 31-32, § 67).

53. The Court’s task accordingly consists in ascertaining whether, in the circumstances of the present case, the entry of the police into the applicant’s home struck a fair balance between the relevant interests, namely the applicant’s right to respect for her private life and home, on the one hand, and the prevention of disorder and crime, on the other.

54. The Court notes that on the morning of 3 October 1989, Mr McLeod’s solicitors, knowing the long and acrimonious history of the divorce proceedings, contacted the police requesting their attendance in order to avoid a breach of the peace occurring while their client’s property was being removed from the applicant’s home. Two police officers were instructed to attend. Upon arriving at the applicant’s home, the police officers were shown a copy of the list of property that was to be removed, but not the order accompanying it (see paragraph 12 above).

One of the police officers knocked at the door of the house and was told by the applicant’s mother that the applicant was not at home. Mr McLeod and his party entered the house and began removing the property. The police officers also entered the house, but did not participate in the removal of the property. One of them, however, checked that only items mentioned on the list were removed. When the applicant returned home, she became angry and demanded that the property that had been loaded into the van be put back into the house. One of the police officers intervened, insisting that the van be driven away and that any dispute should be left to the parties’ solicitors (see paragraphs 13 to 15 above).

55. The Court considers that, since Mr McLeod’s solicitors genuinely believed that a breach of the peace might occur when their client removed his property from the former matrimonial home, the police could not be faulted for responding to their request for assistance. In this regard, it notes that the domestic courts accepted that a situation that might begin as a domestic dispute could develop into a breach of the peace (see paragraph 18 above).

56. However, the Court observes that, notwithstanding the facts that the police were contacted in advance by Mr McLeod’s solicitors and that the solicitor’s clerk offered to return to his office and collect the court order (see paragraph 12 above), the police did not take any steps to verify whether Mr McLeod was entitled to enter her home on 3 October 1989 and remove his property. Sight of the court order would have indicated that it was for the applicant to deliver the property, and not for her former husband to collect it, and moreover that she had three more days in which to do so (see paragraph 11 above). Admittedly, the court order would not have enabled the police officers to ascertain the correctness of Mr McLeod’s genuinely held belief that an agreement had been made between himself and his ex-wife allowing him to remove his property from the former matrimonial home on 3 October 1989 - a belief that was communicated to the police officers upon their arrival (see paragraph 12 above). Nonetheless, given the circumstances of the interference, and the fact that the applicant was not present and that her mother lacked any knowledge of the agreement (see paragraph 13 above), the police should not have taken it for granted that an agreement had been reached superseding the relevant parts of the court order.

57. The Court considers further that, upon being informed that the applicant was not present, the police officers should not have entered her house, as it should have been clear to them that there was little or no risk of disorder or crime occurring. It notes in this regard that the police officers remained outside the property for some of the time, suggesting a belief on their part that a breach of the peace was not likely to occur in the absence of the applicant (see paragraph 14 above). The fact that an altercation did occur upon her return (see paragraph 15 above) is, in its opinion, immaterial in ascertaining whether the police officers were justified in entering the property initially.

58. For the above reasons, the Court finds that the means employed by the police officers were disproportionate to the legitimate aim pursued. Accordingly, there has been a violation of Article 8 of the Convention.’

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"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

"62. In the applicants’ view, the Contracting States are obliged under Article 13 to provide an effective remedy for any alleged breach of the Convention; any other interpretation of this provision would render it meaningless. On the other hand, both the Government and the Commission consider that there is no basis for the application of Article 13 unless a right guaranteed by another Article of the Convention has been violated."

--------------------------------------------------------------------------------------------------------------------------------------------------------------

"64. Article 13 states that any individual whose Convention rights and freedoms "are violated" is to have an effective remedy before a national authority even where "the violation has been committed" by persons in an official capacity. This provision, read literally, seems to say that a person is entitled to a national remedy only if a "violation" has occurred. However, a person cannot establish a "violation" before a national authority unless he is first able to lodge with such an authority a complaint to that effect. Consequently, as the minority in the Commission stated, it cannot be a prerequisite for the application of Article 13 that the Convention be in fact violated. In the Court’s view, Article 13 requires that where an individual considers himself to have been prejudiced by a measure allegedly in breach of the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. Thus, Article 13 must be interpreted as guaranteeing an "effective remedy before a national authority" to everyone who claims that his rights and freedoms under the Convention have been violated."

"113. The principles that emerge from the Court’s jurisprudence on the interpretation of Article 13 include the following:

It follows from the last-mentioned principle that the application of Article 13 in a given case will depend upon the manner in which the Contracting State concerned has chosen to discharge its obligation under Article 1 directly to secure to anyone within its jurisdiction the rights and freedoms set out in section I (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 91, para. 239)."

"The Court observes that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations mentioned in paragraph 73 above, p. 39, § 122).

Moreover, it is recalled that in certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (see, inter alia, the above mentioned Leander judgment, p. 30 § 77)."

‘64. The Court recalls that the effect of Article 13 is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-..., p § 145). However, such a remedy is only required in respect of grievances which can be regarded as "arguable" in terms of the Convention.’

----------------------------------------------------------------------------"However, as the Government have conceded in relation to Article 8 of the Convention (see paragraph 50 above), there was no provision in domestic law to regulate interceptions of telephone calls made on internal communications systems operated by public authorities, such as the Merseyside Police. The applicant was therefore unable to seek relief at national level in relation to her complaint concerning her office telephones."

‘89. The Court reiterates that Article 13 guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the "competent national authority" both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The remedy must be "effective" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy judgment cited above, p. 2286, § 95, and the above-mentioned Aydin judgment, pp. 1895-96, § 103).’

"66. The applicant argues that he was denied an effective remedy in relation to his complaints. The only body to which he could complain about the police surveillance was the Police Complaints Authority (PCA). When the PCA received his complaint they remitted it to the local police authority which itself oversaw the investigation. Thus, in the applicant’s case, the Chief Constable of West Yorkshire was effectively asked to investigate whether one of his officers had properly applied to the Acting Chief Constable of West Yorkshire when requesting authorization to carry out the surveillance operation. The applicant argues that the investigation was therefore insufficiently impartial.

67. The Government contend that the PCA provide a sufficiently independent means of investigation. They note that the PCA has powers to refer charges of criminal offences to the Director of Public Prosecutions and to prefer disciplinary charges.

68. The Commission notes that complaints only have to be referred to the PCA in circumstances where they contain allegations that the relevant conduct resulted in death or serious injury or where the complaint is of a type specified by the Secretary of State. In other circumstances the Chief Constable of the area will decide whether or not he is the appropriate authority to decide the case. If he concludes that he is the correct authority then the standard procedure is to appoint a member of his own force to carry out the investigation. Although the PCA can require that a complaint is submitted to them for consideration under section 8 of the 1984 Act, the extent to which the PCA oversee the decision-making process undertaken by the Chief Constable in determining if he is the appropriate authority is unclear. If the Chief Constable does determine that he is the appropriate authority then the standard procedure is for him to appoint an officer from his own force or from another force, to investigate the complaint.

69. The Commission also notes the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the PCA. In particular, the Commission notes that under section 105(4) of the Act the PCA are to have regard to any guidance given to them by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings.

70. The Commission finds that the system of investigation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13. The Commission accordingly finds that there has been a violation of Article 13 of the Convention."

--------------------------------------------------------------------------------------------------------------------------------------------------------------

"131. The applicants submitted that Article 13 contained two minimum requirements. First, the relevant national authority had to have jurisdiction to examine the substance of an individual’s complaint by reference to the Convention or other corresponding provisions of national law and, secondly, that authority had to have jurisdiction to grant a remedy if it accepted that the individual’s complaint was well-founded. Moreover, the precise scope of the obligations under Article 13 would depend on the nature of the individual’s complaint. The context of the present case was the application of a blanket policy which interfered with the Article 8 rights of a minority group and not an assessment of an individual extradition or expulsion in the context of Article 3 as in the Soering and Vilvarajah cases (Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, and the Vilvarajah and Others judgment cited above)."

--------------------------------------------------------------------------------------------------------------------------------------------------------------

"135. The Court recalls that Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. However, Article 13 does not go so far as to require incorporation of the Convention or a particular form of remedy, Contracting States being afforded a margin of appreciation in conforming with their obligations under this provision. Nor does the effectiveness of a remedy for the purposes of Article 13 depend on the certainty of a favourable outcome for the applicant (see the Vilvarajah and Others judgment cited above, p. 39, § 122)."

--------------------------------------------------------------------------------------------------------------------------------------------------------------

"138. In such circumstances, the Court considers it clear that, even assuming that the essential complaints of the applicants before this Court were before and considered by the domestic courts, the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the Court’s analysis of complaints under Article 8 of the Convention.

The present applications can be contrasted with the cases of Soering and Vilvarajah cited above. In those cases, the Court found that the test applied by the domestic courts in applications for judicial review of decisions by the Secretary of State in extradition and expulsion matters coincided with the Court’s own approach under Article 3 of the Convention.

139. In such circumstances, the Court finds that the applicants had no effective remedy in relation to the violation of their right to respect for their private lives guaranteed by Article 8 of the Convention. Accordingly, there has been a violation of Article 13 of the Convention."

"41. The applicant also alleges a breach of Article 13 of the Convention on the ground that the courts should have taken into account that the evidence had been obtained in breach of the Convention."---------------------------------------------------------------------------------------------------------------------------------------------

"42. The applicant submits that, according to domestic law, a breach of Article 8 does not satisfy the requirements for exclusion under section 78 of PACE, even if the evidence so obtained is the only evidence in the case. Section 78 is therefore not capable of affording a remedy which is practical and effective, as required by Article 13.

In connection with the Government’s claim that the Police Complaints Authority provides a second remedy, the applicant again refers to the findings of the European Commission of Human Rights in Govell v. the United Kingdom (§§ 68-70) and submits that, given the Commission’s finding of a breach of Article 13 in those circumstances, the Court must also find a breach of the Article in the present case."

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

‘44. The Court recalls that Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, without, however, requiring incorporation of the Convention (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 135, ECHR 1999). In the present case, the Article 13 claim must be taken to be an allegation that the applicant did not have an effective remedy in respect of his claims under Article 8 of the Convention. The Court would note at the outset that the courts in the criminal proceedings were not capable of providing a remedy because, although they could consider questions of the fairness of admitting the evidence in the criminal proceedings, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant’s right to respect for his private life was not "in accordance with the law"; still less was it open to them to grant appropriate relief in connection with the complaint.

45. As regards the various other avenues open to the applicant in respect of the Article 8 complaint, the Court observes, again with the Commission in the case of Govell, that complaints only have to be referred to the Police Complaints Authority in circumstances where they contain allegations that the relevant conduct resulted in death or serious injury or where the complaint is of a type specified by the Secretary of State. In other circumstances the Chief Constable of the area will decide whether or not he is the appropriate authority to decide the case. If he concludes that he is the correct authority, then the standard procedure is to appoint a member of his own force to carry out the investigation. Although the Police Complaints Authority can require a complaint to be submitted to it for consideration under section 87 of PACE, the extent to which the Police Complaints Authority oversees the decision-making process undertaken by the Chief Constable in determining if he is the appropriate authority is unclear (Govell, § 68).

46. The Court also notes the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the Police Complaints Authority. In particular, the Court observes that under section 105(4) of the Act the Police Complaints Authority is to have regard to any guidance given to it by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings (Govell, § 69).

47. Accordingly, the Court finds that the system of investigation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13. There has therefore been a violation of Article 13 of the Convention.’

"Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by the law."

-------------------------------------------------------------------------------"The guiding principles were recently restated by the European Court of Human Rights in paragraph 59 of its judgment in Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 in the following terms:

-------------------------------------------------------------------------------"It is also clear that art 10 may be used when the court is contemplating how a discretion is to be exercised. Thus in A-G v Guardian Newspapers Ltd [1987] 3 All ER 316 at 355, [1987] 1 WLR 1248 at 1296 Lord Templeman referred to art 10 when considering whether the interference with the freedom of expression which the grant of an interlocutory injunction would entail was ‘necessary in a democratic society’ for any of the purposes specified in para (2) of art 10."

"In the determination of his civil rights and obligations"--------------------------------------------------------------------------------------------------------------------------------------------

"everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly"---------------------------------------------------------------------------------------------------------------------------------------------------------------

"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."----------------------------------------------------------------------------------------------------

"(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for the preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

"The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press of particular importance (see, as a recent authority, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p 23, 31."

"As a matter of general principle, the "necessity" for any restriction on freedom of expression must be convincingly established (see the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, pp. 28-29, § 50, for a statement of the major principles governing the "necessity" test). Admittedly, it is in the first place for the national authorities to assess whether there is a "pressing social need" for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued. In sum, limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court.

The Court’s task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the "interference" complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are "relevant and sufficient."

"it is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do."

"We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself."

"I conclude that the appeal should be allowed and the petition should be dismissed. I am conscious that my decision may present difficulties in the way of the respondents recovering money which, according to the judgment is owed. However I believe that it would be wrong to massage the law to assist them in the way suggested."

--------------------------------------------------------------------------------------------------------------------------------------------------------------"and in each such case, if there are any grounds for bringing the proceedings, the High Court will give leave for proceedings to be brought."

"If the court on such an application was satisfied that the proceedings were proper Mr Cutler would, of course, obtain leave to bring any proceedings and there was no question of his being shut out from coming to the court."

"Mr Blackstone, if this Order were to be made against him, is entitled to access to the courts, but before he troubles the citizens of this country with actions he will have to satisfy, if the Order is made, a judge that there is an arguable case for the actions that he proposes to bring."

"One may, perhaps, pause and wonder whether in truth the restriction that a section 42 order imposes on the respondent is indeed so very drastic. After all, it is not everyone who is entitled to obtain free of charge the opinion of a High Court judge on whether one’s prospective litigation has any sensible prospect of success and is worth pursuing."

--------------------------------------------------------------------------"He must understand, and I think he does understand, that the order as such does not inhibit him from taking part or taking a particular step in any particular proceedings. What the order provides is that before doing that in any particular proceedings he must obtain the leave of the single judge. That single judge will be able to focus on those particular proceedings and Mr Collins will then be able to try and satisfy him that what he is seeking to do in those particular proceedings is a perfectly sensible thing for him to try and do. If he can do so then he will get leave to do just that."

"Mr Collins is of course perfectly entitled to make application to a High Court Judge if he feels there is any specific matter which he can properly litigate, and any such application will in due course, if made, be considered by a judge on its merits."

"I should add by way of completeness that Mr Ewing was granted leave, pursuant to section 42 of the Supreme Court Act 1981, by two more High Court judges to apply for leave to apply for judicial review and then to appeal to this court from the judgment of Turner J who himself granted leave to appeal. All those grants of leave were made on the basis that the appeal or application was properly arguable and/or alternatively had a reasonable prospect of success."

"Mr Low, although we are grateful to you for the care in which you have answered your case, you have lost it. What that means is, you can start cases, but only if you get the leave of a High Court judge, that is what the Act provides. Some would say, although you may not agree, this is actually an advantage: you get free advice from a high court judge who ought to know what he is doing."----------------------------------------------------------------------------------------------------------------------------------------------

"If you feel that it is essential to litigate something as opposed to writing to your MP, then you will have to try and put down in clear and intelligible form which you may not be able to do. It is like me with plumbing, I explained that to you earlier. Try and show what are the facts you allege, then the judge will be able to see, supposing those facts are true, if there a cause of action, do you see?"

"The final point I would make in relation to Mr Haralabidis’ application is that I fully acknowledge that an order made under section 42 of the Supreme Court Act 1981 does interfere with Mr Haralabidis’ normal rights as a citizen to bring proceedings. It is a partial interference with those rights because he can always obtain leave to bring proceedings if a court is satisfied that it is appropriate for him to do so."----------------------------------------

"I should add that the effect of making this order is not to shut Miss Richards out from any genuine action that she may have in the future. She will, of course, be entitled to seek leave from a judge to bring proceedings, and will undoubtedly be permitted to bring any proceedings which are not themselves vexatious. Thus the effect of this order is not to shut her out wholly from bringing proceedings, merely to prevent her from bringing proceedings which ought not to be brought."---------------------------------------------------------------------------------------------

-------------------------------------------------------------------------------"I add emphasis simply to the last point which my Lord has made. The effect of this order is not to debar Miss Richards from instituting or continuing or making any application in any civil proceedings, but to debar her from taking any of those steps without the leave of the High Court. It is open to Miss Richards to seek leave and if she does so on proper grounds, leave will be granted. But Miss Richards must understand that leave will not be granted if the matter which she seeks to raise is one which has already been the subject of a conclusive judicial ruling, since the law does not permit the same issue to be re-litigated time after time. As a litigant with some knowledge of the law Miss Richards will, I am sure, understand the principle which underlies this rule.

In the result therefore, Miss Richards is not shut out from using the courts, but she must obtain the leave of the High Court. To obtain leave she will have to show that she has an arguable cause of action which has not been the subject of previous adjudication."------------------------------------------------------------

"39. I add this. By making a civil proceedings order Mr Oakes is not prevented absolutely from continuing or instituting civil proceedings. He must first obtain the permission of the High Court before so doing and satisfy the court that the proceedings or applications are not an abuse of the process of the court and that there are reasonable grounds for the proceedings or applications."

"42. The court is mindful that any step which restricts an individual’s ordinary right of access to the court is a serious step not to be taken lightly.

43. Under subsection (3) of that section leave for the institution or continuance of, or for the making of an application in, any civil proceedings by a person who is the subject of an existing civil proceedings order is not to be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application. Mr Oakes objects to an order because he says that in practice leave under subsection (3) is never given. It may very well be that leave is very rarely given, but if leave is refused it is because the High Court is not satisfied that the proceedings or application in question are not an abuse of the process of the court or that there are reasonable grounds for the proceedings or application. That is not a high threshold to cross. If Mr Oakes can show an arguable and apparently bona fide claim which has not already been the subject directly or indirectly of previous proceedings before the court, there is no reason why he should not obtain leave."------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------------"It is clear from section 42(3) that the making of an order operates not as an absolute bar to the bringing of further proceedings but as a filter."

"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the Court were to go into the matter in any depth at that stage. If on a quick perusal of the material then available, the Court thinks that it discloses what might turn out to be an arguable case in favour of granting the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief."

"must be adequately accessible : the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct : he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail."

"The principle of construction for which Mr Ewing contends is sound."

‘But if it includes an abridgement of the rights of the subject in regard to redress for crimes committed in regard to his person or his property, one would, I venture to think justly expect the Legislature, instead of using words of general import, to make it quite clear that criminal proceedings were intended to be included in the enactment. "Statutes which encroach on the rights of the subject whether as regards person or property, are similarly" (the learned author has in the preceding chapter been dealing with the construction of Penal Acts)" subject to a strict construction..... It is a recognised rule that they should be interpreted, if possible, so as to respect such rights." (Maxwell on the Interpretation of Statutes, 5th ed. p 461.)’

-------------------------------------------------------------------------------"a strict construction of penal laws, or statutes encroaching on rights, especially the liberties of the subject, or imposing burdens; all are cases where general words have been cut down to a narrower meaning in endeavouring to seek the intention of the Legislature, not from the widest meaning of the words used, but from the considerations that must have influenced Parliament in framing the enactment."-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"In the case of this statute the Legislature clearly intends to interfere with some rights of persons, and uses words capable of extension to rights of litigation in criminal matters, but in my opinion more suitable to the subject-matter of rights of litigation in civil matters only. In my view, looking at the enacting parts of the statute only, the presumption against interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to that meaning which effects the least interference with those rights."

"I decline to make this more serious interference with the liberty of the subject, unless the Legislature uses language clear enough to convince me that that was its intention, and I think ample meaning is provided for its words, and ample remedy is provided for the grievance in respect of which Parliament was legislating by putting the narrower construction on the general words it has used."

"One of the valuable rights of every subject of the King is to appeal to the King in his courts if he alleges that a civil wrong has been done to him,"---------------------------------------------------"This right is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But the language of any such statute should be jealously watched by the courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension"

"To no one will we sell, to none will we deny, to none will we delay, right or justice"

----------------------------------------------------------------------------------------------------------------------------------------------------------"I bear in mind that every citizen has a right to come to the courts for relief, and it is will established that even where statute is relied on, only the most clear and unequivocal words would entitle the courts to deny him access (see R & W Paul Ltd. -v- Wheat Commission (1936) 2 All ER 1243 at 1247, (1937) AC 139 at 153 per Lord Mcmillan, Pyx Granite Co. Ltd. -v- Ministry of Housing and Local Government (1959) 3 All ER 1 at 6, (1960) AC 260 at 286 per Viscount Simonds, Raymond -v- Honey (1982) 1 All ER 756 at 762, (1983) 1 AC 1 at 14 per Lord Bridge)."--------------------------------------------

"Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is "brought" for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date."

----------------------------------------------------------------------------"In our view, the purposes of the insolvency legislation can quite well be served without requiring that a summons served, or an application made, without prior consent, should be considered to be a nullity or incompetent."---------------------------------------------------------------------------------------------------------------------------"We cannot, however, see that there is any reason why it should be necessary for the provision of such protection to treat any proceedings which may, for one reasons or another, be

commenced without consent as null, and therefore, incapable of proceeding further".-------------------------------------------------------------------------------------------------------------------------------------

------------------------------------------------------------------------------------------------------------------------------------------------------------"In the whole circumstances, therefore, we consider that the industrial tribunal were wrong in holding that the present application was a nullity, and that the appropriate course would have been to sist the application in order to allow the applicant an opportunity to apply for consent for the proceedings to be brought, should the administrator persist in taking the point."

--------------------------------------------------------------------------------------------------------------------------------------------------------------"As the Court of Appeal emphasised in Rendall v. Blair, 45 Ch.D. 139, the legislator knows well enough how to provide that leave shall be a strict condition precedent to valid proceedings being issued and that clear words are to be used if that is intended, words perhaps even requiring a provision for the dismissal of proceedings if the condition precedent is not satisfied. Without some such clear language being used the provision can be taken to be directory––the word used in Rendall v. Blair, and, in Australia, used in In re Testro Bros. Consolidated Ltd. [1965] V.R. 18 and In re Horsham Kyosan Engineering Co. Ltd. [1972] V.R. 403. To the same effect is the view taken in Canada (Wheat Board) v. Kyupski, 26 C.B.R.(3d) 293 and elsewhere that a want of leave is only an irregularity."

-----------------------------------------------------------------------------------------------------------------------------------------------------------"When the legislature means a thing to be void, it says so, as in sections 128(1) and 130(2), a point corresponding to one made by Blair J. in New Zealand in Brown v. E.G. Laurie Ltd [1930] N.Z.L.R. 23. I am entitled also to have in mind that a strictly literal construction leads, as is here accepted, to some absurdity which consideration must, however little, open the door to a more purposive construction and which weakens the force of the strict letter of the section which, as I accept, would ordinarily lead to leave to commence being available only before commencement."

-------------------------------------------------------------------------------"‘It is our view (and, as I read Schiemann LJ’s statement after judgment to which I have referred, it is his view) that because the matters are all of a part, Mr Menzies should have the opportunity to make the renewed application for leave to apply for judicial review, notwithstanding the existence of the section 42 order. There does not appear to be a ban upon a second application for leave under section 42, and neither the court nor Mr Menzies have found any authority dealing with that point. We consider that if he wishes to pursue his applications further, he should again seek leave to make the renewed application, notwithstanding the existence of the section 42 order."--------------------------------------------------------------------------------------------

"A decision of the Lord Ordinary to refuse leave, under section 1 of this Act, to institute legal proceedings shall be final."

"As to whether the possibility of retrospective leave jeopardises the purposes of the section, a whole century of experience of such leave being available in the Commonwealth provides no example of any such jeopardy, nor do I see any such jeopardy as likely to ensue here, nor did Lord Coulsfield in the long citation from Carr v. British International Helicopters Ltd. [1994] I.C.R. 18, 30 which I have cited above."

-----------------------------------------------------------------------------------------------------------------------------------------------------------"I share with the Full Bench in Lahore in 1942 the view that, if the section is capable of being read more than one way, there is no doubt which way entails the less injustice and inconvenience. If, as I hold, the words used are in their full historical context fairly capable more than one meaning, it is legitimate for me to adopt a meaning which gives effect to the statutory purpose, rather than frustrating it, as in my view an inflexible powerlessness to give leave even in the most glaring of cases would do: see Bristol Airport Plc. v. Powdrill [1990] Ch. 744, 759B."

-----------------------------------------------------------------------------------------------------------------------------------------------------------"Accordingly, I hold that leave may in appropriate circumstances be give under section 285(3), notwithstanding that the proceedings in question have already been commenced.

As to the form of leave, as leave to continue proceedings (as might be given under section 130(2)) is not possible section 285(3) relates only to the commencement of the proceedings, there is not open to me that benign sophistry have sometimes given leave to continue proceedings in cases where leave to commence had not been given and have thereby disguised the nature of the problem. The jurisdiction in bankruptcy, if I am

right and if leave is to be given here, can only be leave nunc pro tunc to commence the proceedings."------------------------------------------------------------------------------------------------------------------

"Here, we are now one court and we are not considering a decision of a court of co-ordinate jurisdiction. We are considering a decision of this court. So far as the dictum of Grove J. is concerned, I can only say for myself that I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction. He is only bound to follow the decisions which are binding on him, which, in the case of a judge of first instance, are the decisions of the Court of Appeal, the House of Lords and the Divisional Court."

"‘As I read what Nourse J. is saying, he is doing no more than stating what is practical common sense and ordinary judicial comity. One judge does not gratuitously depart from, still less review, another’s decisions. The law having been stated by one judge, another judge will not lightly differ from what he has said. Where the judgment in question is fully reasoned after full argument it will have very great persuasive authority which it may be difficult for any litigant at first instance to displace." (Emphasis added.)’