(As approved by the court)

©Crown Copyright

 

LORD JUSTICE MILLETT: We have before us today two applications for leave to appeal against civil proceedings orders made by the Divisional Court on 18^th February 1997. The applicants are two brothers, Mr Frank Lewis Foley and Mr Harry Desmond Foley. Mr Frank Lewis Foley has appeared before us today, assisted by a Mackenzie friend. His brother, Mr Harry Foley, is not present but he has written to the court and asked us to permit his brother to address us on his behalf. We are prepared to treat the application before us today as made by both applicants because there is no relevant distinction between their cases.

The Divisional Court found that both applicants had habitually and persistently and without any reasonable ground instituted vexatious civil proceedings and had made vexatious applications in civil proceedings, and made civil proceedings orders under section 42(1) of The Supreme Court Act 1981 against both applicants. The effect of those orders does not of course deny the applicants access to justice in a proper case, but it does oblige them to obtain the leave of a High Court judge before instituting any civil proceedings.

The evidence, which was summarised by Rose LJ in the Divisional Court, is that between them the applicants instituted no fewer than 26 High Court actions against a wide variety of defendants. Of those actions 19 were brought by Mr Frank Foley with or without others but without his brother as a co-plaintiff; two were brought by Mr Harry Foley with or without other plaintiffs but without his brother as a co-plaintiff; and five were brought by both brothers.

The outcome of those 26 actions can be summarised as follows. One was dismissed after the proceedings had been compromised but without obtaining any overall relief. One proceeded no further after an application for summary judgment was dismissed by the master. One proceeded no further after the receipt of a defence which denied that the statement of claim disclosed any reasonable cause of action. One was discontinued after receipt of an application to strike out on the ground that the statement of claim disclosed no reasonable cause of action. 22 were struck out against all, or at least some, of the defendants on the ground either that they disclosed no cause of action or that they were scandalous, vexatious and an abuse of the process of the court or both.

Some of the proceedings arose out of the conduct of solicitors, or the Director of Public Prosecutions or others, in relation to criminal proceedings. But all 26 actions were actions in the High Court and were all civil proceedings within the meaning of the Supreme Court Act 1981.

In some of the cases appeals were brought but all such appeals were dismissed. Mr Frank Foley has told us that he has an abundance of fresh evidence which has been assembled since the hearing before the Divisional Court and which he wishes to place before the Court of Appeal. But it is clear, from what he told us, that his evidence is intended to go behind the decisions which led to the actions being struck out. He wishes to show that they were good actions, that they should not have been struck out, and that they should have been allowed to go to trial where the various defendants would have been found guilty of the allegations of fraud, conspiracy and so on which have been made against them.

The evidence is misconceived. On an application under section 42(1) of the Supreme Court Act 1981, the court cannot go behind the results of the various civil proceedings which are ruled on. If an action is struck out as disclosing no cause of action or as being scandalous, vexatious or an abuse of the process of the court, the plaintiff’s remedy is to appeal and, if the appeal is unsuccessful and the action is struck out, that is an end of the matter. It cannot be resurrected under the vexatious litigant procedure.

Subject to one point, to which I will come in a moment, this was to my mind a very plain case which cried out for the making of an order under section 42(1) of the Act. But in the court below Mr Harry Foley raised a point of some importance, and Mr Frank Foley today has told us that he too wishes to avail himself of it. It is said that there was no sufficient evidence before the Divisional Court that these proceedings have been duly authorised by the appropriate law officer. It is plain from the Act that the proceedings must be brought by and in the name of the Attorney-General, and they have been so brought. But are they duly authorised? Section 1(1) of the Law Officers Act 1944 allows the Attorney- General’s functions to be delegated by him to the Solicitor General in any particular case.

In The Attorney-General v. Hayward (unreported but there is a transcript of 10th November 1995) and again in The Attorney-General v. Williams 22^nd April 1996, Pill LJ, on one occasion in this court and on the other occasion in the Divisional Court, indicated that it was his view that, because the fundamental rights of the subject are affected by the making of a civil proceedings order, there should be evidence placed before the court that the appropriate law officer has personally considered the papers and has personally authorised the making of the application.

In the present case the only evidence directed to the point consists of an affidavit sworn by a lawyer in the Treasury Solicitor’s Department that the papers were placed before the Solicitor General with a copy to the Attorney-General; that the Attorney-General initialled the papers; and that the Solicitor General subsequently endorsed them with his agreement to the making of the application. There is, however, no evidence that the Attorney-General delegated his functions in this case to the Solicitor General, unless his initialling the papers can be so construed, and the applicants submit that the Solicitor-General’s personal instructions that the proceedings should be brought may well not have been sufficient. The Divisional Court, however, accepted the evidence as sufficient.

The applicants submit that the case raises a point of considerable constitutional importance. I agree that it does. The underlying question of principle is whether it is correct that a Minister of the Crown must exercise his own discretion personally when the exercise of his powers involves a serious invasion of a subject’s civil rights. The applicants submit that that goes without saying and they are, as I have indicated, supported in this submission by the practice of the Divisional Court following the observations of Pill LJ to which I have referred.

For my part, I am far from convinced that they are right. The submission does not sit comfortably with the decision of Brightman J in Re Golden Chemicals Limited [1976] Ch. 300 and the long line of authorities there cited. It does not sit comfortably with the practice in the Chancery Division of making public interest winding up orders against a company at the suit of the Secretary of State for Trade and Industry, who is not required personally to consider the papers but may delegate his statutory powers to his permanent officials. Moreover, it does not seem to me easy to reconcile the submission with the fact that the proceedings are brought by the Attorney-General and in his name. The submission really challenges the Treasury Solicitor’s authority to bring the proceedings in the name of the Attorney-General. The normal rule in a case where the authority of the plaintiff’s solicitors is challenged is that the challenge cannot be made in the proceedings themselves and does not afford a defence, but must be raised, if at all, by a summons taken out in the proceedings so that the issue can be decided as a preliminary issue. If a respondent to an application by the Attorney-General for a civil proceedings order wishes to challenge the authority of the Treasury Solicitor to bring the proceedings, I should have thought that the right procedure was for the respondent to issue a summons in the proceedings, in which event he would have to adduce prima facie evidence that there was a want of authority.

In this case the burden of introducing evidence has been placed upon the Attorney-General from the outset. For my part I am far from persuaded that the current practice of the Divisional Court, based on the dicta of Pill LJ, is constitutionally correct or procedurally well-founded. But I am satisfied that the point deserves serious consideration by the full court, and that it is a point of considerable practical importance for the future conduct of litigation of the present kind.

Accordingly, I would grant leave to both applicants to appeal against the making of a civil proceedings order but limited to the ground to which I have referred. I would for my part refuse leave to appeal on any of the other grounds which have been mentioned in the papers before us.

LORD JUSTICE BROOKE: I agree.

Order: Application allowed but limited

as per judgment; service of

notice of appeal 7 days;

amicus curiae be instructed.