JUDGMENT

LORD JUSTICE ROCH: I will ask Lord Justice Roch to give the first judgment.

LORD JUSTICE OTTON: This is an application for leave to appeal against a civil proceedings order made by the Divisional Court on 19 March 1997. Mr Price, the applicant, is a litigant in person. Unfortunately, on 6 July 1997 Mr Price had an accident from which he is still recovering. In a letter dated 12 July, which he enclosed a further document containing his submissions which enlarge the grounds for the application already before the court and Mr Price indicated to the court that he is unable to attend.

All Mr Price's litigation stems from a single dispute with Novell Inc, a company incorporated in the United States of America. That company manufactures and distributes computer hardware and software systems. The applicant's company, Modata Computers, held the distributorship of Novell's products. He then acquired Novell Data Systems ("NDS") which became the vehicle for that distribution.

In May 1986 Mr Price's exclusive distributorship was changed by agreement into a non-exclusive one. In October 1987 NDS brought an action against Novell Incorporated and Novell UK, claiming that the 1986 variation had been obtained by, inter alia, economic duress. In June 1988 NDS was placed in voluntary liquidation and in December of that year the liquidator settled the actions on terms that Novell Inc would pay NDS £100,000 for loss of commission, and £25,000 for any good will in the Novell name, in full and final settlement of all disputes between the companies.

Mr Price has always been aggrieved by the settlement. By subsequent litigation he has sought to unravel both it and the 1986 agreement. Mr Price's subsequent litigation is set out in a schedule attached to this judgment. Mr Price has bought ten further actions in all. While denying any merit of Mr Price's claims, Novell and its lawyers have made a number of offers to settle the dispute once and for all. Efforts broke down in July 1996.

Section 42(1) of the Supreme Court Act 1981 provides:

Subparagraph (1A) then defines what is meant by a civil proceedings order.

By a motion dated 2 October 1996, the Attorney General sought a civil proceedings order against Mr Price. The Divisional Court rejected an application to adjourn the hearing. In their judgment the court held that the proceedings had been properly instituted, that the jurisprudence of the European Court of Human Rights confirmed that English procedures relating to vexatious litigants did not infringe Article 6 on the right of a fair hearing, and accepted the Attorney General's submissions that Mr Price had habitually and persistently, and without reasonable grounds, instituted vexatious civil proceedings.

The court went on to make an order preventing Mr Price from instituting civil proceedings for 15 years, from continuing any civil proceedings with the exception of the action against the liquidator's successor firm and the liquidator's solicitor, and from making any application in civil proceedings begun by anyone else, except with the leave of the court.

The applicant seeks to challenge the decision of the Divisional Court on five principal grounds:

First, Mr Price contends that he did not receive a fair hearing contrary to Article 6 of the European Convention of Human Rights in that there was no equality of arms between the parties, and that no court has ever refused to make an order under Section 42, or its predecessor, on an application by the Attorney General.

The argument runs along the lines that the court has no real power, authority or discretion to dismiss a Section 42 application; the applications made by Mr Price were not vexatious and that he never had any intent to be vexatious at all in any of the legitimate steps which he took in the course of litigation, he was merely exercising his right as a private citizen. He further makes claims that the length of the prohibition and the absence of any restriction on the Novell Group was disproportionate.

Dealing with this ground, in my view the success of the Attorney General in other cases is irrelevant to the question of whether there was a fair hearing in this particular case. His references to Article 6 of the ECHR indicates that he is relying on provisions which are only applicable in criminal cases. The procedures adopted in this case satisfy me that there was no breach of the requirement of natural justice and that Mr Price did have a fair hearing within the meaning of the rules and the scope of Section 41(1).

The assertion that there was no real power or authority or discretion to dismiss the Section 42 application is misconceived. Where a statute provides that the court may make an order, it is implicit that it may also decline to make an order. There was clear evidence which justified a finding within Section 42. This is a typical case where a party, having lost an action reasonably brought, has made persistent and vexatious attempts to relitigate the matter, looking at all the documents which have been lodged by Mr Price in support of this application, the history of the matter and the documents before the Divisional Court, it is abundantly clear that Mr Price is seeking to reopen the issues which have already been determined or are pending in the other litigation.

The second ground advanced is that the Divisional Court erred in holding that the applicant did not wish to take any community law points, and it was obliged, or ought, to have referred them to the European Court of Justice. Alternatively the Court of Appeal should now do so. In support of that assertion, Mr Price has, in the documents lodged with the letter of 12 July, enlarged upon that submission and has referred to a number of provisions of community law and decisions of the European Court of Justice.

I am satisfied that, having received the new material, there is no substance in this ground. There is no basis for disputing the Divisional Court's conclusion that a requirement to obtain leave under a civil proceedings order does not constitute a denial of remedies under community law. It should be noted that the European Commission has held that the provisions relating to vexatious litigants do not infringe the Convention.

The third basis on which Mr Price seeks to impugn the decision of the Divisional Court is that the proceedings were not properly constituted. He says that the application was authorised by the Solicitor General and not the Attorney General personally. He further contends that there was no, or insufficient, evidence that either Law Officer had considered the papers personally.

The answer to this can be briefly stated by Section 1(1) of the Law Officer's Act 1944:

The authority for the solicitor to act was put before the Divisional Court and this court. It is in an established proper form and there is, thus, no substance in that point.

In so far as it is alleged that there was insufficient evidence that either law officer had considered the papers personally, it transpires that before the Divisional Court, counsel, then appearing for the Attorney General, indicated his willingness to show that counsel's advice had been obtained by and submitted to the law officer. There is no substance in that ground.

The fourth point taken is that the Divisional Court failed to follow binding authority to the effect that the Divisional Court could, or should, not have considered whether on-going cases were vexatious. An action which is struck out, as against some defendants but not others, cannot have been brought without reasonable ground or be vexatious.

In support of that proposition, Mr Price, both in his grounds and in his document in support of the application, sets out a number of authorities, including, in particular, the decision in the Attorney General v Jones [1990] 1 WRL 863 and Attorney General v Ewing [1988] CO/1724/88, an unreported decision which this court has had the opportunity to study. I am satisfied that there is no authority for the proposition stated by Mr Price. There is nothing in Section 42, or in the decided cases, to suggest that proceedings or applications cannot be vexatious as against some defendants and not as against others. This ground is devoid of merit.

The final point is that the courts cannot, or will not, allow applications by the Attorney General to fail, in that he may rely on any or all actions brought by the applicant and the applicant cannot challenge the underlying judgments. This ground merely reiterates what has gone before. The applicant must now accept, with the authority of this court, that the Divisional Court, in reaching its conclusions, did not have the power to consider the merits or allow the applicant to challenge the underlying judgments on the hearing of the application for the order.

In those circumstances, I have come to the conclusion that there are no realistic prospects of success for the applicant if this court were to grant leave to move for judicial review. In particular, the prospects of a referral by this court to the European Court of Human Rights, or to the European Court of Justice, are non existent. I would therefore dismiss this application.

LORD JUSTICE ROCH: I agree.

Order: Application dismissed.