IN THE SUPREME COURT OF JUDICATURE Case No. LTA 96/7717/D

IN THE COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice

Strand

London W2A 2LL

Wednesday, 4th June 1997

B e f o r e

LORD JUSTICE AULD

LORD JUSTICE PILL

HER MAJESTY'S ATTORNEY GENERAL

Respondent

v.

ROWAN GAVIN PATON MENZIES

Applicant

(Computer Aided Transcription of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

THE APPLICANT appeared on his own behalf.

THE RESPONDENT did not appear and was not represented.

J U D G M E N T

(As approved by the Court)

LORD JUSTICE AULD: Lord Justice Pill will give a short judgment now.

LORD JUSTICE PILL: This is an application for leave to appeal. It is brought by Mr Rowan Gavin Paton Menzies, and he seeks to appeal a decision of the Divisional Court made on 28th October 1996 whereby that court made against him an order under section 42 of the Supreme Court Act 1981. The hearing had been in the summer of 1996, and at the same time the applicant made an application for leave to apply for judicial review. He sought an order to review the decision of the Attorney General not to read documents which he (the applicant) had submitted to the Attorney General. I do not propose to refer in any detail to the judgment of the Divisional Court in view of the course which, in my view, is now appropriate to be taken.

Mr Menzies feels aggrieved by a series of decisions of the courts, and in particular a decision made by His Honour Judge Baker. The subsequent litigation initiated by Mr Menzies has been substantially in an attempt to reverse the effect of that judgment. The Divisional Court put it in this way:

The next section of the judgment of the Divisional Court is headed "Attempts to challenge the Baker 1991 Judgment" and sets out the attempts which Mr Menzies has made.

Mr Menzies submitted that the "Baker judgment" had been obtained by perjured evidence, and he sought to persuade the Attorney General to take action in criminal proceedings against the alleged perpetrators of the alleged perjury. The Divisional Court reached this conclusion:

Mr Menzies is also seeking a remedy with the European Court of Human Rights. That need not be considered in detail because of the course which is to be taken, but it may be noted that Mr Menzies in his application to that court has put his complaint in this way:

At page 107 of the bundle:

When Mr Menzies commenced his submissions to the court this morning it was clear that the paragraph I have just cited formed the basis for his application for leave to appeal. He believes that the section 42 application should not have been made by the Attorney General, because it was the Attorney General himself who had made the litigation initiated by Mr Menzies necessary by declining to investigate the perjury which Mr Menzies alleges.

Following the judgment of the Divisional Court, Mr Menzies sought leave to appeal and raised consequential matters. The Divisional Court declined leave, but in doing so Schiemann LJ (page 27 of the transcript) said this:

I am not entirely clear which of the possible applications Schiemann LJ had in mind, but it does appear that Schiemann LJ contemplated that, notwithstanding the section 42 order which had been made by the Divisional Court, it should be open to Mr Menzies to renew his application for leave to apply for judicial review. The Divisional Court had refused the application for leave to apply for judicial review. Mr Menzies in the event took that advice, because he applied on 14th February 1997 to Brian Smedley J for leave to make the renewed application for leave to apply for judicial review, notwithstanding the section 42 order against him. It may be that Brian Smedley J was not given the fullest information, and that is no criticism of Mr Menzies; the position is not a straightforward one. Be that as it may, the learned Judge refused leave to Mr Menzies to make the renewed application for leave to apply for judicial review. By virtue of the provisions of section 42 of the 1981 Act, there can be no appeal against such a refusal.

When it appeared clear to this court what the basis was upon which Mr Menzies was seeking leave to appeal against the section 42 order it has occurred to both members of the court that it would be more sensible if any renewed application for leave to apply for judicial review should be heard first. Mr Menzies clearly has an uphill task in the way he puts his case upon section 42. If for no other reason, that is because he is in substance challenging the decision of the Attorney General not to consider his papers, a decision which can be challenged only by way of judicial review. Whatever the cause for the litigation, it would be difficult, as my Lord pointed out to Mr Menzies, to establish that the litigation which led to the section 42 application was not such as to make him a vexatious litigant. He seeks the opportunity to say that it was only the default of the Attorney General which could be challenged in judicial review proceedings which led to the litigation, which in turn led to the section 42 application.

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. It would of course be for the Judge hearing it (and I would not propose to reserve it to Brian Smedley J) to consider the situation as it now exists, but no doubt that will involve consideration, amongst other things, of the statement of Schiemann LJ at page 27 of the transcript of October 1996 and the contents of the judgments delivered today. It may not have occurred to the Divisional Court, and understandably so, that the hint which they gave in October 1996 could not in the event be pursued because of the existence of the section 42 order.

Mr Menzies agrees with this course. He has suggested that the two matters might be heard together, that is the renewed application for leave (if leave to make it is granted) and the application for leave to appeal against the section 42 order. I would not propose to give a direction to that effect, though not excluding the possibility that, if it is convenient to list it in that way, it can be done (and Mr Menzies points out understandably that it would make it easier for him as a litigant in person with his documentation if the two matters were to be heard together). However, the first step would be, if Mr Menzies wishes to take the matter further, to make a fresh application to a High Court Judge for leave to make the renewed application for leave to apply for judicial review. It is in those circumstances that I would accede to Mr Menzies' application that today's application by him should be adjourned.

LORD JUSTICE AULD: The application is therefore adjourned for the reasons given by my Lord.

ORDER: Application adjourned for an open date.