Wednesday 13 October 1999

JUDGMENT

LORD WOOLF, MR: I will ask Lord Justice May to give the first judgment.

LORD JUSTICE MAY: This is an application by Thomas Mathew for permission to appeal against a decision of a Divisional Court of the Queen’s Bench Division consisting of the Lord Chief Justice and Ognall J on 24 May 1999.

Mr Mathew comes from a very distinguished family with strong connections with the law. He was one of five brothers, of which he was the second eldest. His elder brother, Theobald Mathew, died in France on 10 July 1983 leaving an estate in excess of £1m. Thomas Mathew, the applicant, was originally one of two executors of his estate. There were great difficulties with the administration of this estate. This lead to an order of the court of 10 June 1986 appointing a Mr Carey as Judicial Trustee in place of the executors. In giving his judgment on that occasion, the Vice Chancellor described the history of the administration to that date of the estate as “disastrous”.

It is unnecessary to dwell on the details. Between June 1986 and February 1991 there was much litigation concerning, or related to, the continued administration of Theobald Mathew’s estate. Most of this litigation consisted of proceedings brought by the applicant, or by notices of motion or application made by the applicant, in proceedings brought by others. Some of these proceedings had begun before the court appointed the Judicial Trustee in 1986.

On 2 February 1991 a Divisional Court consisting of Farquharson LJ and Millet J, as he then was, found the applicant to be a vexatious litigant under the provisions of Section 42 of the Supreme Court Act 1981 and made an all proceedings order against him. The judgment of the court on that occasion extends to some 66 pages and was a most careful analysis of the unhappy history and of the various proceedings which the Attorney General, who made the application, brought to the court’s attention. In the event, the application did not rely on matters before the appointment of the Judicial Trustee in June 1986. There were, however, numerous proceedings, notices of motion and applications in matters referred to in the judgment of the Divisional Court as “the Probate Action” 1983 FD 211; “The Chattels Action” 1983 M No 3443; “The Sale of Farm Lands Action” 1987 Ch M No 2468; “The Papers Document Action” 1984 M No 4596; “The Judicial Trustee Proceedings” 1986 Ch.1097 which, among other things was the subject of a long and careful judgment by Knox J in January 1987 on appeal from decisions of the Master; various attempted criminal proceedings; judicial review proceedings and no less than six actions in the Queen’s Bench Division.

It is unnecessary to go into the detail of all these proceedings. These may be found in the long judgment to which I have referred. In general terms most of them concerned attempts by the applicant to remedy wrongs which he considered had been done by a whole series of people and firms, many of them lawyers, in the course of the unhappy administration of his brother’s estate. It should be pointed out that the Divisional Court did not find that in every single proceeding referred to the applicant had acted vexatiously. One, but not the only example of this, is the Papers Documents Action.

The flavour of what was going on may be seen from this passage from page 16 of the Divisional Court judgment:

I repeat that I refer to that passage only to give a flavour of the subject matter of these proceedings and the applicant’s view about how the administration of his brother’s estate was mishandled.

Again, to give a flavour of this long and detailed judgment, it looks as if almost every judge of the Chancery Division during the late 1980s was at one time or another involved in the affairs of this estate, usually at the instance of the present applicant. He also made a number of appeals or applications for leave to appeal to the Court of Appeal, all of which were unsuccessful.

The court’s conclusion in relation to numerous applications made in the Judicial Trustee Proceedings was expressed in these terms on page 45 of the judgment:

The Divisional Court described one of the Queen’s Bench actions, Action 1988 M No 5392, in these terms on page 56 of the judgment:

There were eight solicitors and four professional firms together with numerous other defendants. The action was subsequently struck out against virtually all the defendants and applications for leave to appeal to the Court of Appeal were refused. Of this, the Divisional Court said on page 60:

Of the last action to which the judgment refers, Action 1990 M No 3250, the Divisional Court said on page 63:

Having expressed the conclusion to which I have already referred, the court said at page 64 of the judgment:

Those sentiments have been echoed subsequently by other courts, and they apply also to the way in which the applicant has conducted his application before us both today and in preparation.

In conclusion, in 1991 the Divisional Court expressed the view that, even taking account of the applicant’s success in The Papers Document Action and those occasions were he entered judgment in default, the grounds for making the order against him were overwhelming.

The applicant appealed the decision of the Divisional Court of 2 February 1991. His appeal was dismissed by the Court of Appeal on 27 February 1992, the court then consisting of Fox, Russell and Beldam LJJ. Fox LJ, with whom the other two Lords Justices agreed, concluded that the Divisional Court on the evidence before it had amply sufficient ground on which to reach the conclusion which it did and was fully entitled to make an all proceedings order. He saw no reason to interfere with that judgment. He also said at page 6 of his judgment:

The fact that that appeal was brought and dismissed is a matter of record. It is, in my judgment, no part of this court’s proper function today to reopen the conclusion of that appeal. The only forum in which that conclusion might have been challenged was the House of Lords. We understand that Mr Mathew has received informal advice to this effect. It is therefore only a comment if I say, as I do, that you only have to read the judgment of the Divisional Court in 1991 to see that the case for making an all proceedings order against Mr Mathew was indeed, as the court concluded, overwhelming. That order does not prevent Mr Mathew from ever bringing civil proceedings. He is able to do so if he can to persuade a High Court Judge to give him permission in an individual case. Indeed he has succeeded in getting permission in at least two cases, in one of which, an action against a pawnbroker, he achieved a modest success before Chadwick J (as he then was).

Mr Mathew now accepts that some, perhaps many, of the applications which he made in the late 1980s were misconceived. In his affidavit sworn on 17 May 1999 for the purpose of the present application to the Divisional Court, he apologised for the fact that he had failed to find a firm of solicitors to advise him correctly and for “all the misconceived applications I had made.” He said that the only thing he was trying to do was to find the correct procedures to follow so that his brother’s estate would be administered in accordance with his wishes and the rules of court, and he includes some personally distressing information in the affidavits in which he explained why he acted as he did.

The present proceedings began with Mr Mathew’s application to the Divisional Court dated 17 May 1999. It was an application that the all proceedings order made in February 1991 should be quashed and set aside. The grounds of the application were stated to be that evidence, set out in a number of paragraphs of his affidavit of 17 May 1999, which was not available to him before the order was made, shows that the order was obtained against the justice of the case. Mr Mathew contends that evidence used by the Attorney General in making the application in good faith was, to use his phrase, “fraudulently presented”. He does not say that the Attorney General or his representatives behaved in any way that he would criticise; rather, as I understand it, that the evidence presented to the Attorney General was fraudulent. He knows of no other way to present his case than to make the application which he did.

The additional evidence was summarised by Ognall J in giving the first judgment of the Divisional Court under 7 headings as follows:

Ognall J’s reasons for reaching the conclusion that the application should be dismissed were essentially threefold:

(a) that the new material presented by Mr Mathew went to challenge the conclusions of some of the proceedings which underlay the application to make him a vexatious litigant, but did not impinge on those latter proceedings;

(b) that, although some of the detail was new, the underlying thesis was identical with that canvassed before the Court of Appeal in 1992;

(c) that it was not necessary for the court to conclude that all the proceedings forming the subject of the section 42 application were vexatious. The court was entitled to take a broad view and ask itself whether the litigation as a whole indicated the persistent initiation of proceedings without reasonable cause.

Ognall J concluded that it was not open to the Divisional Court to set aside the order made by the Divisional Court in 1991 and upheld by the Court of Appeal in 1992. In so far as it might be established that any of the additional material might impugn any decision in earlier litigation, the proper way of dealing with it was to seek leave on a case by case basis to start proceedings.

The Lord Chief Justice agreed with Ognall J’s judgment. He could not see any procedural basis upon which the court could properly grant the relief which Mr Mathew sought, particularly bearing in mind that he did not challenge the good faith of the Attorney General in obtaining the order. If Mr Mathew had any arguable complaint about the affairs of his late brother and his estate, he had the right to seek leave under section 42(3) on a case by case basis. The Lord Chief Justice did not encourage him to make such an application, but that would be the appropriate course. The Court refused leave to appeal

The applicant’s draft grounds of appeal contend, first, that the proceedings should have been heard by a single High Court Judge under section 19(3) of the Supreme Court Act 1981 rather than by the Divisional Court. This was a contention which he made to the Court of Appeal in 1992 and which was rejected because order 94 rule 15 provides that applications by the Attorney General under section 42 of the Supreme Court Act 1981 are to be heard and determined by the Divisional Court.

There is no force whatever in Mr Mathew’s contention that, since many of the matters of which he complains happened before this rule was brought into force in 1988, he should have had what he appears to regard as the benefit of the position which obtained before that date. So far as is relevant to this application, the rules apply at the date at which the proceedings are brought.

The draft notice of appeal next contends that Millet J, as he was then was, should not have sat with Farquharson LJ in February 1991 and that Beldam LJ should not have sat with Fox and Russell LJJ on the appeal in February 1992, because each of them had been involved in earlier proceedings which were the subject of the Attorney General’s application and had made decisions or comments adverse to Mr Mathew. I see no force in this contention at all. The fact that a judge has heard and determined a previous case concerning a litigant is generally no reason why that judge should not sit on a subsequent case on which the litigant is a party. There is, in my view, nothing particular in this case indicating that either of these judges should have declined to sit.

The fourth draft ground of appeal is that the evidence put against Mr Mathew was presented to cover fraud and that the all proceedings order was made against the true justice of the case to allow the estate of his brother to be distributed in 1991 (so it is said), without the administration being completed by the Judicial Trustee. This is the essential point which the Divisional Court dealt with in the present proceedings.

In my judgment, permission to appeal should be refused in this case. I reach this conclusion for the same essential reasons as those reached by the Divisional Court, which I express in my own words as follows:

(1) The propriety and appropriateness of the all proceedings order made in 1991 was considered and tested before the Court of Appeal in 1992 and the appeal was dismissed. This court has no jurisdiction to reconsider that concluded decision. None of the new material presented by Mr Mathew would come anywhere near justifying reopening that concluded decision.

(2) The new material, in substance, seeks to provide a challenge or further challenge to the propriety and correctness of some of the decisions made in the proceedings underlying the all proceedings order, not the proceedings in which the all proceedings order was made. Such a challenge can be made, if at all, only in the proceedings to which it relates. That was the conclusion of Lord Donaldson of Lymington MR in Attorney General v Jones [1990] 1 WLR 859 at 863D-F where he said:

A petition for leave to appeal to the House of Lords against that decision was dismissed (see [1990] 1 WLR at 1089).

(3) Even if the new material were thought, upon proper consideration between all parties concerned, to enhance the merits of some parts of the litigation considered by the Divisional Court in 1991, it is, in my view, obvious that there would, nevertheless, remain abundant material upon which the 1991 order could and should properly have been made.

(4) As judges have said on more than one occasion, if any new material does, upon consideration, provide Mr Mathew with any reasonable ground for bringing or continuing proceedings, he is at liberty to apply for permission to do so under section 42(3) of the Supreme Court Act 1981.

In my judgment, for these reasons, Mr Mathew has no reasonable prospect at all of succeeding on an appeal. I would refuse the application for permission to appeal.

I would only add that Mr Mathew is concerned that it appears that his name may remain on a list of vexatious litigants even after he dies. He is also concerned about what thinks may be an infringement of the Data Protection Act in the publication on the internet and elsewhere of the fact that he is a vexatious litigant. In my view, these are not matters that arise on this application, nor is it appropriate that this court should deal with them.

LORD WOOLF, MR: I agree.

Order: Application refused.