IN THE SUPREME COURT OF JUDICATURE
CO/2791/97 COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM QUEENS BENCH DIVISION
(SIMON BROWN LJ AND HOOPER J)
Royal Courts of Justice
Strand
London WC2
Thursday, 13th April 2000
B e f o r e :
LORD JUSTICE PETER GIBSON
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HER MAJESTY’S ATTORNEY GENERAL
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THOMAS O’NEILL
AND
MARGARITA O’NEILL
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(Computer Aided Transcript of the Stenograph Notes of
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The appellants appeared on their own behalf with Mr Ewing as a Mckenzie friend.
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J U D G M E N T
Approved by The Court
Thursday, 13th April 2000
JUDGMENT
1. LORD JUSTICE PETER GIBSON: This is an application by Thomas O’Neill and Margarita O’Neill who, by Deed Poll, changed their names to Lord Charles Leslie Falconer of Thoroton and John Morris respectively, in protest against section 42 of the Supreme Court Act 1981 and in order to lampoon the then Solicitor General as Attorney General.
2. The applicants seek permission to appeal from the civil proceedings order made against them on 9th June 1998 in the Divisional Court. Leave was refused by that court. The application was made promptly but was then stood out pending the decision of this court in Attorney General v Foley, and the judgment in Attorney General v Foley was given on 1st March 2000.
3. The background to this case can be summarised in this way. The applicants have five children born between 1983 and 1988, all of whom were made wards of court and put into the care of the London Borough of Islington (“the Council”). On 14th March 1990, Hollings J made care orders in respect of each of the five children. He gave leave to the Council to place the children with a view to adoption. He denied the applicants access to the children.
4. The subsequent procedural history to the 13th May 1993 is recounted in the judgment of Wilson J of that date. It is sufficient to say that there were several applications and appeals by the applicants, all unsuccessful. On 13th May 1993 Wilson J ordered that the applicants should not issue any applications in any proceedings relating to the children without the prior leave of a High Court judge.
5. On 25th June 1993 Ewbank J considered an application by the Council to commit the applicants for an alleged breach of an injunction ordered by Ward J in March 1990. Ewbank J held that although the conduct of the applicants was deplorable, there had been no injunction in force prohibiting their conduct; but he granted an injunction restraining the applicants from attempting to contact the children and warned the applicants that any breach of that injunction would be likely to result in imprisonment.
6. On 18th July 1994 Wilson J granted the Council an injunction restraining the applicants from making allegations of abuse or neglect in relation to the children without leave of the court or from molesting or interfering with the children and their adoptive parents. The applicants were ordered not to make any application in the proceedings without the leave of a High Court judge.
7. On 12th December 1994 in contempt proceedings, Wilson J found the applicants guilty of contempt and committed them to prison for one year. Their appeal was dismissed and their application for leave was refused.
8. In addition to all those proceedings involving the applicants, they commenced no less than 24 actions; 23 of those actions were brought against parties directly or indirectly involved in proceedings relating to their children. A large number of the 23 actions were struck out. None of them appears to have succeeded. The defendants in the 23 actions ranged from the Council to the Prime Minister and the Home Secretary.
9. The 24th action was against a local family who, as the applicants allege, had harassed the applicants as a result of publicity following an article in The Sun newspaper. The defendants to those proceedings gave undertakings. The Divisional Court rightly assumed that the 24th action was not vexatious when considering whether or not to make a civil proceedings order.
10. On 1st August 1997 the Attorney General applied for a civil proceedings order. In the Divisional Court, Simon Brown LJ, with whom Hooper J, agreed considered that the evidence of the numerous proceedings involving the applicants and the 23 actions presented an overwhelming case for the making of a section 42 order which should remain in force indefinitely. None of the numerous points,
11. Simon Brown LJ said, which were taken by the applicants, had any merit, and so the order was made.
12. The applicants appear before me in person. Mrs O’Neill has addressed me with the assistance of a McKenzie adviser. She has spoken both on behalf of herself and her husband. In her draft notice of appeal no less than 27 grounds of appeal are contained. In addition she has put before me this morning a skeleton argument running to 99 pages. I pay tribute to the industry which has gone into the preparation of that document. It contains numerous references to authorities as well as extensive citation therefrom.
13. The skeleton raises, I think, one entirely new point as to the impartiality of the court in dealing with the civil proceedings order. This is said to be because the Law Officers are likely to be consulted, amongst other persons, when judges are appointed. For my part, I find it a little difficult to understand how that can be an objection in the present case given the short period in which the Attorney General and the Solicitor General who were indicted in the institutiuon of the proceedings were in fact holders of their offices. In addition to the skeleton argument, there has also been put before me a witness statement by Mr Sainsbury relating to the system of appointment of judges.
14. What I propose to do is go through the grounds of appeal in summary to determine whether they disclose a case which has a realistic prospect of success on an appeal were leave to be granted or whether otherwise they show that the case is one which ought to be considered by this court on appeal.
15. Grounds 1 to 4 amount to a complaint that the hearing before the Divisional Court should have been adjourned. The basis of that application is that Mr O’Neill, unhappily, has had very serious health problems. He had a stroke one year before the hearing in the Divisional Court. A medical certificate was put before the Divisional Court, as they record, and indeed they cite from it. There was a request to the Divisional Court that Mr O’Neill’s appearance in court be delayed as long as possible to allow him the best chance of defending himself. It is said that there has been a breach of natural justice in the continuation of the hearing before the Divisional Court when Mr O’Neill was, through ill health, unable to be present.
16. It was plainly within the proper ambit of the Divisional Court’s discretion to refuse the application for an adjournment, given that Mrs O’Neill attended the hearing with a McKenzie friend to assist her and that a 49-page skeleton argument had been prepared for them both to be considered by the Divisional Court. The Divisional Court took the view, which in my judgment was a permissible one, that the case would not have taken on any different complexion if Mr O’Neill had been present.
17. In grounds 5 to 6 complaint is made of the non-disclosure of a summary said to have been prepared for the Divisional Court by a Crown Office lawyer. I do not know whether such a summary was in fact prepared.
18. Mrs O’Neill has told me that attempts have been made to obtain that document but those attempts have been refused. In Parker v The Law Society, The Times 8 December 1998, it was held that Bench memoranda prepared for this court do not have to be disclosed. Like reasoning would apply to any summary prepared for the Divisional Court. It was suggested to me that the decision in the Parker case was per incuriam because of other cases relating to non-disclosure of evidence in criminal proceedings. I disagree. I do not see that it is possible to say that Parker could realistically be distinguished so as not to apply to what occurred in the Divisional Court. Accordingly, there is no prospect of success in my view on that point.
19. In grounds 7 to 9 and also ground 15, Mrs O’Neill complains that she was not allowed to address the court fully. That again has been repeated to me this morning. No court is obliged to allow a litigant to address the court for as long as the litigant chooses regardless of the material that the litigant has already put before the court and regardless of the merits of the points which he or she is wishing to take. In my judgment, having regard to the fact that there was a full skeleton argument put before the Divisional Court by Mr and Mrs O’Neill, the Divisional Court was entitled to limit Mrs O’Neill in the way in which it apparently did.
20. Grounds 10 to 14 and 16 to 22 are an objection to the constitutionality of the proceedings brought by the Attorney General. Somewhat similar points were taken in Attorney General v Foley. This court held in that case that where there is a challenge to the validity of a civil proceedings order brought by the Attorney General who has delegated a function in respect of those proceedings to the Solicitor General and the Treasury Solicitor acts as his solicitor, it is for those who challenge the authority of the Law Officers or that of the Treasury Solicitor to commence proceedings to lead evidence which would support that challenge and, further, that it is necessary to do so in sufficient time before application for a civil proceedings order is the present proceedings is heard. In support of the Attorney General’s application in the present case, Mr Bennett, a solicitor in the Treasury Solicitor’s Department, has put in an affidavit. He said that he had conduct of the proceedings on behalf of the Attorney General. He exhibited an authority given by the Attorney General for the Solicitor General to act in this case pursuant to section 1(1)(c) of the Law Officers Act 1944 and an authority given by the Solicitor General for the application to be made against Mr and Mrs O’Neill. That affidavit of Mr Bennett was dated 5th August 1997.
21. On 8th June 1998, that is the day before the Divisional Court hearing, Mrs O’Neill swore an affidavit apparently in response to Mr Bennett’s affidavit ten months earlier. In that affidavit Mrs O’Neill challenged the authority to bring the proceedings. That, on the basis of the decision in Foley, was far too late, nor is there any material contained in that affidavit to show that the challenge to the authority was on grounds of substance. In my judgment, there is simply nothing in this point.
22. In grounds 23 to 27 a challenge is made to the indefinite period of the order. It is said that such an order is disproportionate. This morning I have been shown the decision of the Divisional Court in Attorney General v Yeo on 8th December 1999. On the particular facts of that case the Divisional Court took the view that the civil proceedings order made in that case should be limited to a ten-year period. Reference was also made to another case, Attorney General v Price where again there was a limited period prescribed for the civil proceedings order which was, I believe, 15 years. It is plain from the judgment of the Divisional Court that it considered specifically whether or not it was appropriate to make an indefinite order, but it took the view that this was a case where the order should not be limited in point of time because the evidence in support of the application suggested that the order should be an indefinite one. On the particular facts of this case and having regard to the multiplicity of the proceedings and the numerous applications that were made in the proceedings brought not by Mr and Mrs O’Neill but by the Council. It is quite impossible to say that the Divisional Court could not properly reach the conclusion which it did.
23. I therefore see no realistic prospect of success on any of the grounds of appeal. Nor do I think that the further ground which is not in the draft notice of appeal, that is to say the objection to the impartiality of the Divisional Court, is one which has any realistic prospect of success either. There is, in my judgment, no other reason disclosed why an appeal should be allowed to go ahead to this court. Therefore, I am forced to come to the conclusion that this application for permission to appeal must be dismissed.
(APPLICATION FOR PERMISSION TO APPEAL DISMISSED)
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