(As approved by the court)

1. LORD JUSTICE ROCH: This is an application for permission to appeal from the order of Lord Justice Russell and Mr Justice Scott-Baker, sitting as a Divisional Court on 9^th July 1996, making an order under section 42 of the Supreme Court Act 1981, declaring the applicant a vexatious litigant and prohibiting him from taking any further proceedings without permission of the High Court. The application is out of time.

2. In their judgment, given by Lord Justice Russell, the Divisional Court set out some nine legal proceedings in which the applicant had been involved since 1990. The court indicated the nature of those proceedings and also the way in which the applicant had conducted them, and I quote from that judgment:

“... frequently failing to attend court, making very serious allegations without foundation.”

3. The court also set out the results of such proceedings which, without exception, were that the applicant’s cases failed. The court also referred to correspondence which accompanied the proceedings, describing that correspondence as being of an aggressive and abusive nature.

4. The initial application for permission to appeal, which was made in November 1997, some 15 months after the Divisional Court’s judgment, was adjourned on the direction of Lord Justice Kennedy given on 27^th January 1998 to await the outcome of a case of the Attorney General v. Foley. That was a case in which this court considered the question of applications by the Attorney General or by the Solicitor General for orders under section 42 and what had to be shown in such applications to establish that the applications were properly brought with the authority, either direct or indirect, of the Attorney General. That case has now been decided by this court, presided over by Lord Justice Peter Gibson, and it is clear that no point could be taken by Mr Day as to the procedural validity of the application which was before Lord Justice Russell and Mr Justice Scott-Baker in July 1996.

5. Mr Day appealed from that direction but that appeal was eventually adjourned twice at Mr Day’s request. Now Mr Day has a somewhat different application and it is that if he is given permission to appeal, then that appeal should not come on until the Human Rights Act comes into force on 1^st October of this year.

6. The initial application for permission to appeal was made some 15 months out of time. That would not necessarily be fatal to the grant of permission if the applicant were able to show that an appeal would have a reasonable prospect of success and if he were able to give some reason which has cogency for the original application being 15 months late. Those are the two matters which we have to resolve today.

7. In the document in which he presents his application Mr Day has put forward as a reason for the original application being out of time the initial shock of the order being made and the stress caused to him by reason of the limitations imposed on him by the order that the Divisional Court made. But the applicant goes on to refer to the fact that at the time of his application for leave to appeal, which was 9^th November 1997, he had made several applications in various proceedings for permission to continue those proceedings, all of which had been refused. The difficulty which the applicant faces is that, if he was able to make applications in those proceedings for permission to continue, it is difficult to understand why he could not at the same time have made an application for permission to appeal.

8. Mr Day has produced at this hearing a carefully prepared bundle of some 85 pages and he has referred us to parts of that bundle on which he particularly relies. Three of the documents are relevant to this aspect of the case. The first is at pages 71 and 72, which is a report by Dr Cook dated 21^st February 1995; at that time he was Mr Day’s general practitioner and, it would seem, the senior doctor in the Friars Gate medical practice. That report refers to Dr Cook’s finding that Mr Day was not suffering from any formal psychiatric illness but was greatly affected by the stress and anxiety associated with his difficulty in obtaining any access or even information about his children. It would seem that Mr Day and his wife were divorced in proceedings which commenced in 1990; that his wife had custody of the two children, who were still at that time under the age of 16, and that subsequently his wife objected to his having contact with the children, both direct and indirect contact. Later the children were adopted and their present whereabouts is not known to Mr Day.

9. There are two further reports from Dr Plant, a consultant psychiatrist, the first of those being on 9^th January 1998 and the second on 12^th August 1999. In the first report Dr Plant writes this:

“In conclusion I have only heard his side of events but there is no current evidence of any diagnosable mental disorder and I could not elicit any past history of mental disorder.“

10. In the report of 12^th August 1999 Dr Plant writes:

“He is still frustrated in his attempts to have any knowledge of his two younger children. He informed me he had been labelled a paranoid litigant and not been able to make any further progress legally. As last time I could not elicit any psychiatric symptoms and specifically asked him for symptoms suggestive of psychosis or mood disorder. He is understandably anxious and unhappy about his predicament but does not fulfil the diagnostic criteria for any psychiatric diagnosis at present. He keeps reasonably busy doing odd jobs for someone in Christ Church Road and has some social life.“

11. In none of those reports is there any indication that in the doctor’s view Mr Day would have been incapable of applying for permission to appeal.

12. The other reason which Mr Day advances in the affidavit in support of his application for permission to appeal is that, at the time the section 42 order was made, he was unaware that he had any grounds of appeal and was unaware that he should have asked the Divisional Court for leave to appeal. It seems that that latter matter may not be correct and that the Divisional Court may have been asked for leave and refused it. However, that would not in my view be a determining factor in this application.

13. The grounds that Mr Day would raise, were he given permission to appeal, are five in number. As far as the merits go, Mr Day has really made two points to us today. The first is that he has lost all trace of his two children who are still below the age of 16; and, secondly, that he has an action against the Liverpool Victoria Friendly Society for wrongful dismissal and the justice of his situation requires that he ought to be able to pursue legal proceedings in respect of both those matters.

14. The first ground that Mr Day would raise, if he were given permission to appeal, is that the proceedings were brought without jurisdiction and Mr Day would attack the locus standi of the Attorney General in the application heard by the Divisional Court. In my judgment that point, in the light of the decision of this court in Foley, would have no prospect of success at all. We have as part of the papers here an affidavit indicating that this is an application which was brought on the authority of the Attorney General; the time for questioning the legality and propriety of the application is now long past.

15. The second is that Mr Day would contend that a judge must always give leave under section 42(3) of the Supreme Court Act where an application is made by a person subject to such an order for permission to pursue proceedings or continue proceedings if the proceedings raise alleged breaches of the European Convention on Human Rights, provided that there is a prima facie case that there has been a breach of that Convention. Failure to give permission in those circumstances would be a breach of Article 13 of the Convention and Mr Day would seek a declaration from the Court of Appeal to that effect.

16. The applicant has made applications under section 42(3) of the 1981 Act, the terms of which are:

“Leave for the institutional 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 applications are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application.”

17. This proposed ground of appeal may well have been a relevant factor for the court which considered those applications. It is not in my judgment a ground for saying that the making of a section 42 order by the Divisional Court in July 1996 was wrong.

18. The next point that the applicant would raise is that he contends that the court did not have jurisdiction under section 42(1) either under subparagraphs (a), (b) or (c) to consider letters written by him in connection with the conduct of various proceedings and his letters to the Solicitors’ Complaints Bureau. Section 42(1) provides:

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

(a) instituted vexatious civil proceedings, whether in the High Court or any inferior court and whether against the same or against different persons; or

(b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior court and whether instituted by him or another; or

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

19. The court has to be satisfied that the proceedings applications or prosecutions are vexatious and correspondence which forms part or sheds light on the proceedings must be admissible and must be open to consideration by a court who has before it an application under section 42. In my judgment an appeal on that ground would have no prospect of success. The letters that were looked at by the Divisional Court were clearly admissible and relevant to the question whether the proceedings issued were vexatious and as to the way in which the applicant was conducting those proceedings.

20. The fourth ground is that Mr Day contends that the court failed to take into account that he only instituted two prosecutions in the Swansea Magistrates Court and that that did not and could not amount to habitual and persistent institution of criminal proceedings. He contends that unless under each category there is evidence of habitual and persistent use of vexatious proceedings, then the Divisional Court had no jurisdiction to make an all proceedings order.

21. I have already read into this judgment the terms of section 42 and I have no doubt that if there is evidence of vexatious civil proceedings, coupled with vexatious applications in civil proceedings, coupled with vexatious prosecutions, then the court may look at the totality of those proceedings and, if the court considers it right, make an all proceedings order and that would be so even, for example, if there was only one vexatious prosecution, provided that there were other examples of vexatious civil proceedings or vexatious applications in civil proceedings.

22. Again, in my judgment an appeal based on that ground would have no prospect of success.

23. The fifth and last ground that Mr Day would put forward is that the Divisional Court did not specifically apply its mind to whether an all proceedings order should remain in force indefinitely or for a specified period. This point is not dealt with in the judgment of the Divisional Court either directly or indirectly.

24. In my judgment there is no need for the court to deal specifically with this point. It is sufficient that the court makes an indefinite order because under section 42(3) it is always open to the person who is subject to a section 42 order to make application either to bring proceedings or to take a further step in proceedings if that person can satisfy the High Court that the step he or she wishes to take would not amount to an abuse of the process of the court and that there are reasonable grounds for the taking of such a step.

25. The conclusion that I have reached is that, despite the care with which Mr Day has prepared this application and produced the bundle to which he has referred us, this is a case where an appeal would have no prospect of success and that, together with the fact that the application was made some 15 months out of time, means in my opinion that there can only be one resolution of this application, namely that it must be refused.

26. LADY JUSTICE HALE: I agree.

Order: Application refused; transcript be made available at public expense.

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