Tuesday, 12 May 1998

J U D G M E N T

LORD JUSTICE SCHIEMANN: Before the Court is an application for leave to appeal a decision of the Divisional Court (McCowan LJ and Popplewell J) delivered last year in which the applicant was the Attorney General. The Attorney General was granted a civil proceedings order under section 42 of the Supreme Court Act 1981. This provides:

The court did make that order for the reasons set out at length in its judgment, which I shall not set out again.

Before us Mr Tejendrasingh stated correctly that the Rules provide for the application for leave to be made ex parte and objected to the presence of Mr Ashford-Thom, who was here pursuant to a request by the Court to help if called upon. He applied for an order that he should not be heard. We ruled that his objection was ill-founded. It is common place in this Court, on ex parte applications, for the Court to request the presence of the potential opponent. Speaking for myself, I regard that application by Mr Tejendrasingh as the latest of a number of vexatious applications.

The first point made by Mr Tejendrasingh is that the application either was not made by the Attorney General as required by the section, or that the Attorney General had not given the appropriate material his consideration prior to authorising the application. That was a point that he made in the court below. The court below accepted an undertaking by counsel then appearing for the Attorney General that he would cause to be exhibited to an affidavit to be sworn by one of the solicitors in the Treasury Solicitors’ office (which letter was written by someone in the legal secretariat to the Attorney General to that solicitor) dated 26 April 1995, headed:

Upon hearing the contents of that letter and hearing Mr Ashford-Thom’s undertaking that that letter would be thus exhibited, McCowan LJ said:

In those circumstances Mr Tejendrasingh complains that he had no time to consider that letter and it was sprung on him in the proceedings. He argues that the proceedings ought to have been adjourned, but that court did not feel attracted to that suggestion; it does not attract me. He then made the point (which has rather more merit) that this letter amounted to hearsay. Effectively, all the court had was an affidavit by the solicitor saying that another solicitor had told him that the Attorney General had authorised proceedings. Assuming that to be hearsay, it would, on the face of it, be improperly contained in an affidavit pursuant to the general rule in Ord.41,r.5 that an affidavit may contain only such facts as the deponent is able on his own knowledge to prove. However, that Rule is expressly made subject to any order made under Ord.38,r.3 which provides:

As it seems to me that the letter was admissible on that basis, the objection falls to the ground. Speaking for myself, without mature consideration I would wish to reserve the position as to whether, in truth, it is essential for evidence to be before the court that the Attorney General has, in person, considered the facts of the case. There is clearly room for argument that the Solicitor General can do so under the terms of the Law Officers Act 1945; there may well be room for further argument, but we do not need to decide that in the present case.

Mr Tejendrasingh said that the present application was to be considered like a criminal trial and so all matters as to which there could be any possible doubt should be resolved in his favour. This, to a degree betrays a misapprehension. The hearing of an application for a civil proceedings order is not a criminal trial. The only sanction which the order imposes upon Mr Tejendrasingh is that, before taking any further steps in proceedings he obtain the leave of a judge of the High Court.

A major part of Mr Tejendrasingh’s submission before us was that, if the court for whatever reason was satisfied that one of the matters relied upon by the Attorney General did not constitute a vexatious application by Mr Tejendrasingh, then the authorisation for the whole proceedings fell to the ground and they must start all over again. In my judgment, that is to misconceive the situation. It is very common in the practice of this Court and the Divisional Court for the Court not to be satisfied in relation to one or other of the matters which originally appeared to the Attorney General to justify being mentioned in the proceedings, but for the Court nonetheless to make the order because what is left after any such subtraction is still enough to justify the order.

A further point made by Mr Tejendrasingh was to the effect that, in relation to any matter which is still under appeal, it is not possible for the Court to rely on it when considering whether or no applications have been made vexatiously. That again, in my submission, is misconceived. It is a characteristic of vexatious litigants that they regularly seek to appeal vast numbers of orders. There is a fair point to be made that, if appeals have a chance of success, then it is unlikely that the proceedings below were vexatious, and it is unlikely that the appeal will be vexatious or the application for leave to appeal will be vexatious. But the mere fact that an application for leave to appeal has been made, or an appeal has been launched, does not deprive of validity either the judgment of the Court below striking out proceedings, or anything else done by the court below unless it be that that order has been suspended in some way. So that is a basic misconception on his part.

Mr Tejendrasingh submits that a number of decisions of a number of different courts (varying from this Court to single judges of this Court, including the Master of the Rolls and the Lord Chief Justice, right down - if I can put it that way without being offensive - to deputy judges) betray a general bias against him and in any event are wrong, both as to their appreciation of the facts and as to their appreciation of the law. In relation to one of them he said that his submission had been thrown out by the court of first instance, meanwhile, in what is said was a similar case brought by someone else, the submission eventually succeeded in the House of Lords, thus demonstrating that he, Mr Tejendrasingh, had been the subject of a wrong decision. Mr Tejendrasingh says that he could see this coming and had applied for leave to appeal and had his application considered by the Court. He had applied for an adjournment so as to permit the House of Lords’ decision to be made. As it turned out it was in his favour, and yet the Court refused an adjournment. If the facts are as he sets them out, then I can quite see that he would have a feeling of grievance and irritation. But so far as this Court is concerned, we must take the various decisions of the various courts to which he refers as having been correctly decided, unless and until the appeal process shows that they were not correctly decided. That does not mean to say that every application that he has lost is necessarily a vexatious application; that is an entirely separate question. You can lose an application without having been vexatious in making it. In most actions one of the litigants loses the point, but has not necessarily behaved vexatiously in taking the point.

He has been the subject of a Grepe v. Loam (1887) 37 Ch D 168 order. Such an order prohibits the making of applications without leave. Thereafter, he did make innumerable applications and was not heard because he had not obtained the leave. He says that the Grepe v. Loam order ought never to have been made and therefore it should be disregarded. But that again betrays the same misunderstanding about the effect of an order once made by the Court. He says, and says fairly, supposing the Court is acting injudiciously in making such an order - what then? Am I to be deprived of any remedy? The answer to that is: if the order is made by the Court of Appeal, he is effectively deprived of any remedy in the sense that he can only go to the House of Lords if he obtains leave, and if the Court refuses to allow him to make the application for leave, then he is obstructed. But that is inherent in any judicial process. There comes a point when you get to the top and you can go no further.

He also makes the point that a civil proceedings order following a Grepe v. Loam order, as he puts it, exposes him to double jeopardy because, if he started proceedings he might be infringing both the Grepe v. Loam order and the civil proceedings order which has been made against him. One can put his mind at rest in the sense that the civil proceedings order, as it seems to me, takes precedence over the Grepe v. Loam order, and he must make an application to the single judge. If the single judge tells him that he has enough grounds for making his application, then he can move forwards from there.

He makes a point on articles 25 and 26 of the European Convention of Human Rights which provide that the Commission may receive petitions from persons, but they can only deal with the matter after all domestic remedies have been exhausted. If I understood his point correctly, what he was seeking to say was that the Convention required him to proceed to all Courts up to the House of Lords before he could make an application to the European Commission, and it was quite wrong for the court, by making an order such as a Grepe v. Loam order or such as a civil proceedings order, to inhibit the ease with which he could get to the House of Lords. That again is a misconception. The Convention does not require him to do more than national law permits him to do. He must exhaust local remedies and, if local remedies are exhausted when (to take an example) a High Court Judge refuses him leave to make an application after a civil proceedings order has been made, then local remedies are exhausted, and I do not see why the European Commission should refuse to consider on the basis of failure to exhaust domestic remedies any application he may choose to make. In those circumstances he clearly could do no more in this country.

He makes the point that some of the applications relied on in the Court below concern arbitrations (as he calls them) namely hearings in relation to relatively small amounts before the district judge. Again if I understood him correctly, the point he was seeking to make was that such county court arbitrations, as they are commonly known, did not constitute civil proceedings. That as a matter of law I would reject. It seems to me that “civil proceedings” (as that phrase is used in section 42) is wide enough to cover the point.

He makes a different point that in such proceedings he is not expected to consult solicitors. That is indeed true. It may very well be that that is a very relevant factor in considering whether or no he had reasonable grounds and had made an application without reasonable grounds. But it is only a factor; it is not a conclusive factor.

He pointed out a variety of matters which he considered various judges had got wrong. It is impossible for this Court to investigate every single matter which in every single of the many, many applications to which Mr Tejendrasingh has been a party is alleged to have gone wrong. The Divisional Court was entitled, first of all, to take, pursuant to the decision in Attorney General v. Jones [1990] 1 WLR 388, the decisions of lower courts as being final and as not requiring re-examination by the Court of Appeal, when those decisions are decisions to strike something out as disclosing no cause of action. There are some such in the present welter of applications and actions.

In my judgment, the Court is entitled to consider even matters which are pending, and that takes away really the basis of the vast majority of the complaints that are made by Mr Tejendrasingh. I have said once or twice in the course of this judgment that I hope I have got his point right. I do that because frequently it is extremely difficulty, whether on paper or in person, to understand what point Mr Tejendrasingh is seeking to make. I do not say that as a criticism of him, but it does make it the more likely that he does indeed appear to make applications without any reasonable grounds. There certainly can be no doubt that he has persistently and habitually instituted civil proceedings and made applications in civil proceedings. The only matters upon which there could have been any argument as to whether he had done so, looking at the matter broadly, without any reasonable grounds and if so vexatiously. The court below held that he had, and I see no possibility of this Court disagreeing with that judgment. I would refuse leave.

LORD JUSTICE THORPE: I agree.