1. That a Notice of Motion CO/0565/96 was issued by the Treasury Solicitors on behalf of Her Majesty’s Attorney-General seeking a “Civil Proceedings Order” against your Petitioner and his brother Lewis Frank Foley under section 42(1) of the Supreme Court Act 1981 dated the 27 day of February 1996 and sealed on the 19 day of February 1996.

2. That your Petitioner and his brother attended the hearing of the Notice of Motion before the Divisional Court of the Queen’s Bench Division on the 18 day of February 1997 before Lord Justice Rose and Mr Justice Hooper.

1. That Mr Ian Burnett QC counsel for Her Majesty’s Attorney-General addressed the court during the morning session in which he referred in detail to the evidence relied on by the Applicant exhibited to Ms Charlotte Martin’s affidavits sworn on the 16 day of February 1996 and the 10 day of July 1996 who was employed on behalf of the Treasury Solicitor.

SUBMISSIONS OF FRANK LEWIS FOLEY

1. That after Mr Burnett QC had closed his case at the end of the morning session Mr Frank Lewis Foley then proceeded to address the court for most of the afternoon in which he sought to address the court in detail as to the reasons why he considered that none of his actions were vexatious.

SUBMISSIONS OF YOUR PETITIONER

1. That Mr Lewis Frank Foley finished his submissions at approximately 3.15 pm after which your Petitioner then attempted to proceeded to address the court as HM Attorney-General had relied on 8 actions in support of his application against him which he had also been co-plaintiff along with his brother apart from one which he had brought solely by himself.

2. That your Petitioner commenced his address by reading out fully his affidavit sworn on the 18 day of February 1997 and then began to refer to his 14 page Skeleton Argument.

3. That your Petitioner attempted to take the court through his Skeleton Argument which related to a number of important issues including the length under section 42(2) of the Supreme Court Act 1981 of any proposed Order that the court might make against him.

4. That after your Petitioner had finished reading the list of issues set out in his Skeleton Argument he was informed by Lord Justice Rose that he could not address the court in relation to any of them including those relating to whether the respective Law Officers had authorised the proceedings as they were inarguable.

5. That Lord Justice Rose also informed your Petitioner that he would not be able to address the court after 3.30 pm that afternoon although the court had given him no prior indication at all that there was to be any limitation of time to be imposed for making his submissions.

6. That your Petitioner then persuaded the court to listen to brief argument relating to the length of the proposed Order regarding him and also in relation to the fact that he considered that insufficient evidence had been placed before the court in relation to any delegation of authority by HM Attorney-General to HM Solicitor-General under section 1(1)(c) of the Law Officers’ Act 1944 and any further consent for the making of the application or consideration of the merits of such application by him thereafter.

7. That after your Petitioner finished making these submissions briefly at 3.30 pm Lord Justice Rose then informed him that he could not address the court any further.

1. That Mr Burnett QC in brief reply referred the court to Ms Martin’s affidavit sworn on the 10 day of July 1996 in which she deposed in paragraph 6 that,

1. That as a result of Lord Justice Rose’s ruling your Petitioner was unable to address the court in detail in relation to the issues of length of any proposed Order to be made against him or the delegation or authorisation issue or indeed any other of the issues that he had sought to raise.

2. That in particular your Petitioner was not permitted to address the court in relation to the circumstances of the individual actions that were relied upon by the Applicant or whether the court should in its discretion make a Civil Proceedings Order against him even if they were satisfied that the Applicant had made out the ingredients of his case under section 42(1) of the Supreme Court Act 1981.

1. That Lord Justice Rose held that the statement in paragraph 6 of Charlotte Martin’s affidavit was sufficient evidence that there had been proper authority for bringing the proceedings and referred briefly to the judgments of Lord Justice Pill in the Court of Appeal of Attorney-General -v- Hayward 10 November 1995 and the Divisional Court of Attorney-General -v- Williams 22 April 1996.

(See judgment at page 2 paragraph G to page 3 paragraphs A-F)

2. That his Lordship reviewed the principles and criteria applicable to making Civil Proceedings Orders under section 42(1) of the Supreme Court Act 1981 in particular for the court to be satisfied that the respondent had “habitually and persistently and without reasonable ground” instituted vexatious civil proceedings.

(See judgment at page 4 paragraphs D-F)

3. That his Lordship also considered the discretionary power to make a Civil Proceedings Order including its length.

(See judgment at page 4 paragraphs F-G)

4. That his Lordship also considered the general approach of the court to the making of Civil Proceedings Orders including taking into account the number of actions brought and their general cumulative character and outcome and any findings of the court that they were vexatious which prevented such findings being challenged before the Divisional Court in accordance with Attorney-General -v- Jones (1991) 1 WLR 859.

(See judgment at page 5 paragraphs C-G to page 6 paragraphs A-B)

5. That his Lordship then reviewed the various alleged underlying grievances of your Petitioner and his brother and considered the various actions relied on by the Applicant in support of his application against them.

(See judgment at page 6 paragraphs C-G to page 20 paragraphs A-B)

6. That his Lordship concluded that your Petitioner and his brother had “habitually and persistently and without reasonable ground instituted vexatious civil proceedings” “having regard to the terms of section 42 of the Supreme Court Act 1981 and taking into account the other legal considerations” that he had identified earlier in his judgment.

(See judgment at page 20 paragraphs C-D)

7. That his Lordship further concluded that it was appropriate in the light of his previous conclusions to make a Civil Proceedings Order against your Petitioner and his brother in the court’s discretion and that it should remain in force indefinitely.

(See judgment at page 20 paragraphs E-F)

8. That as a result the Divisional Court then made a Civil Proceedings Order against your Petitioner and his brother under section 42(1) of the Supreme Court Act 1981.

(See judgment at page 21 paragraph A)

1. That your Petitioner then sought leave to appeal to the Court of Appeal from the Order of the Divisional Court.

2. That your Petitioner also simultaneously sought to address the court in relation to the fact that he considered that he had been denied the opportunity of being fully heard in relation to the various issues that he had wished to address the court on.

(See judgment at page 21 paragraph B)

3. That Frank Lewis Foley also sought leave to appeal to the Court of Appeal from the Order of the Divisional Court.

(See judgment at page 21 paragraphs C-D)

4. That Lord Justice Rose thereafter refused both respective applications for leave to appeal to the Court of Appeal.

(See judgment at page 21 paragraph E)

1. That your Petitioner and his brother thereafter applied for leave to appeal to the Court of Appeal against the Order of the Divisional Court by Notice of Application lodged on the 6 day of March 1997.

2. That your Petitioner also filed an affidavit sworn on the 6 day of March 1997 in which he deposed that he had not been permitted to argue his case and make all of his submissions before the Divisional Court although his brother had been permitted to do so.

3. That the Court of Appeal consisting of Lord Justice Millett and Lord Justice Brooke heard your Petitioner’s and his brother’s application for leave to appeal on the 21 day of August 1997 but due to your Petitioner’s absence due to illness the court permitted his brother to represent him.

4. That the Court of Appeal thereupon granted your Petitioner and his brother leave to appeal limited to the issue of whether the application for a Civil Proceedings Order had been “properly brought in the name of HM Attorney-General”.

5. That the court further requested that HM Attorney-General appoint an amicus curiae to assist the court in relation to the constitutional aspect of the case especially as neither your Petitioner or his brother were then legally represented.

6. That your Petitioner served Notice of Appeal on the Treasury Solicitors on the 2 day of September 1997 and set down his Appeal on the 11 day of September 1997.

7. That your Petitioner was thereafter granted a Legal Aid Certificate dated the 19 day of April 1999 to pursue his appeal.

8. That your Petitioner’s brother applied for leave to set down his appeal out of time by Notice of Application dated the day 17 day of May 1999 and was thereafter granted a Legal Aid Certificate dated the 22 day of July 1999 to pursue his application and appeal.

9. That Mr Jonathan Jones formally of the Legal Secretariat to the Law Officers filed an affidavit on behalf of Her Majesty’s Attorney-General sworn on the 26 day of July 1999.

10. That Mr Jones deposed in it that a submission had been put to the Attorney-General who initially his copy of the submission on the 30 day of March 1995 thereby authorising the Solicitor-General to deal with the matter under section 1(1)(c) of the Law Officers’ Act 1944 and that he had endorsed his agreement to the making of the application on the 29 day of March 1995.

1. That Mr Foxton QC contended that the court had jurisdiction to consider additional grounds other than those in respect of which leave to appeal had been granted and referred to Jones -v- Biernstein (1900) 1 QB 100 R -v-Bow Street Magistrates’ Court ex parte Roberts (1999) 3 All ER 487 and Greenhalls Management Ltd -v- Canavan CA transcript 29 April 1997.

2. That he submitted in relation to the issue on which leave had been granted that the requirement that the proceedings be brought by the Attorney-General was a safeguard regarding such applications which can curtail the constitutional right of access to a court

3. That relying on Re Boaler (1915) 1 KB 21 per Buckley LJ at page 30 the establishment of this fact was not simply an attempt to establish that the solicitors on the record had authority but that the constitutional safeguard had been complied with.

4. That he further contended that the authorities established the propositions that :-

5. That he referred to the following authorities :-

6. That he further contended that R -v- Waller and Price -v- Humphries showed that preliminary checks by Clerks to justices etc would give rise to the application of the maxim “omnia praesumuntur rite et solemniter esse acta” and that the Treasury Solicitor may perform a similar role in relation to applications under section 42 of the Supreme Court Act 1981.

7. That he further submitted that Attorney-General -v- Hayward CA transcript 10 November 1995 was authority that where the issue of consent was raised rebuttal evidence would be required in that case by the Court of Appeal where the point was raised for the first time.

8. That he contended that the issue of consent had been raised in your Petitioner’s case in his Skeleton Argument before the Divisional Court and as the court dealt with it at that late stage then it was not a case where contrary evidence would be required relying on In the Estate of Bercovitz (1962) 1 WLR 321 at page 327 but where the maxim “omnia praesumuntur rite et solemniter esse acta” was displaced by a formal demand putting the applicant to proof.

9. That Mr Foxton QC summed up his submissions to the effect that :-

1. That Mr Burnett QC submitted that the dicta in Attorney-General -v- Hayward (1995) Times 20 November (1995) CA Transcript 1477 at page 26 paragraph C and Attorney-General -v- Williams (1996) COD 368 of Pill LJ relating to what evidence should be placed before the court to show the relevant Law Officers’ involvement in bringing proceedings under section 42(1) of the Supreme Court Act 1981 was obita dicta.

2. That he further argued that the doctrine of “omnia praesumuntur rite et solemniter esse acta” applied in the present case and that there was no rule which required an applicant etc to prove that proceedings brought by them were properly constituted etc.

1. That your Petitioner’s appeal was heard on the 10 and 11 days of February 2000 before Lord Justice Peter Gibson Lord Justice Schiemann and Mr Justice Wilson.

1. That Mr Straker QC submitted that evidence from Mr Jones was admitted in Hayward -v- Attorney-General by the Court of Appeal relating to the endorsing of the submissions put to both Law Officers which was accepted by that court.

2. That he further contended that the requirement that the application be brought by the Attorney-General was a safeguard as access to the court is a constitutional right and referred to Re Boaler (1915) 1 KB 21 R -v- Lord Chancellor ex parte Witham (1997) 2 All ER 779 and Ebert -v- Venvil (1999) 3 WLR 670.

3. That accordingly it was not permissible for applications for section 42 Orders to be merely brought in the Attorney-General’s name without his prior authority.

4. That he further contended that applying for a section 42 Order was a function exercisable by the Attorney-General which if authorised by him to “act in any particular case” could be exercised by the Solicitor-General under section 1(1)(c) of the Law Officers’ Act 1944.

5. That also the functions of the Attorney-General were unique and required some awareness of the decision making process.

6. That he referred in particular to R -v- The Comptroller General of Patents (1899) 1 QB 909 per Smith AJ and also Price -v- Humphries (1958) 2 QB 353 that the mechanism for broadening authority for bringing of proceedings was not broadened by section 42 of the Supreme Court Act 1981.

7. That he also contended that the issue of whether proceedings had been properly initiated by the Attorney-General was a jurisdiction issue going to the lawful constitution of the court and referred to R -v- Bates (1911) 1 QB 964 per Alverstone CJ.

8. That he then submitted that the authority of the Solicitor-General “to act in any particular case” had to be construed so that it referred to specific authority for each individual one and not a wide authority to act generally in any other case.

9. That he also contended that in the present case on Mr Jones’s evidence the Attorney-General’s initials could not be taken to authorise the Solicitor-General to “act in” that “particular case” as he had already purported to do so as section 42 was concerned with authority to act and not ratification of past acts.

10. That he further contended that the Attorney-General could not authorise the Solicitor-General to act on an assumption that he would do so as if constitutional rights were concerned a strict construction should be given to the proper order of functions in section 1(1)(c) of the Law Officers’ Act 1944 as applicable to applications for section 42 Orders.

11. That he then submitted that the Carltona principle of Carltona -v- Commissioner of Works (1943) 2 All ER 560 applied in Re Golden Chemicals (1976) Ch 300 could not apply to the making of section 42 Orders.

12. That as a result the discretion to make applications for such Orders were required to be exercised personally as denial of the constitutional access to the court was involved and this related to the constitutional position of the Attorney-General.

13. That further if the Attorney-General had been able to utilise the Carltona principle the express power to delegate his functions “to act in any particular case” in section 1(1) of the Law Officers’ Act 1944 or its subsequent repeal and replacement by section 1 of the Law Officers Act 1997 effective from the 1 day of October 1997 would have been otiose.

14. That he summarised the position as follows :-

1. That Mr Croxon QC argued that your Petitioner should be granted leave to appeal in respect of the issue of whether he had been denied natural justice before the Divisional Court and that this was relevant to the issue of discretion to make the Order and its length and duration.

2. That he then referred to R -v- Bow Street Stipendiary Magistrate ex parte Roberts and ors (1990) 3 All ER 487 per Watkins LJ Yorkshire Bank plc -v- Hall, Hall -v- Yorkshire Bank plc (1999) 1 All ER 879 per Walker LJ and Greenhalls Management -v- Canavan CA transcript 29 April 1997 per Mummery LJ and Woolf MR.

3. That he further contended that leave should be granted and the matters considered afresh as your Petitioner had been acting in person at the time that leave had been granted and had been represented before the court by his brother.

4. That he further raised the issue of whether refusal by the Divisional Court to your Petitioner to raise the issues that he wanted was in breach of section 42(1) of the Supreme Court Act 1981 thus invalidating the making of the Order.

5. That he contended that your Petitioner was entitled to have addressed the court in relation to the actions relied upon by the Applicant as his brother had been permitted to do so and that this was in all of the circumstances unfair and that the Divisional Court had failed to distinguish between the 2 cases.

6. That he then sought to persuade the court that as your Petitioner had only been involved in 8 actions and had not been the driving force behind them as claimed by Ms Martin in her affidavit sworn on the 16 day of February 1996 the court had not been justified in making an indefinite Order against your Petitioner.

7. That he further argued that these issues could be determined simply from perusal of the exhibits to Ms Martin’s affidavit which had been in evidence before the Divisional Court and that any additional evidence from your Petitioner was unnecessary.

8. That he then submitted that in consequence the making of an indeterminate Order was too harsh especially as once it was made there was no power to vary or rescind it except on appeal and referred to Rohrberg -v- Charkin (1995) Times 30 January CA 24 January 1985 85/15 per Donaldson MR Re C (1989) Times 14 November and Becker -v- Teale (1971) 1 WLR 1475.

9. That he further contended that the making of such Orders for life was the only example of such orders being made so far as he was aware and contrasted it with Road Traffic and other similar jurisdictions where the orders were made for definite periods of time and powers for subsequent reviews existed if changes of circumstances permitted.

10. That he referred to the approach in Ray -v- Millard (1994) 15 Cr App R 445 relating to criteria of seriousness in determining lengths of disqualification of company directors.

11. That he further relied on Attorney-General -v- Price DC transcript 19 March 1997 per Brooke LJ as an example of the court exercising its jurisdiction to make an Order limited in time under section 42(2) of the Supreme Court Act 1981 (in that case 15 years).

12. That he then contended that it was only fair that your Petitioner should be permitted to reargue these points before the Court of Appeal as this would be the last time that he would effectively be able to do so.

13. That he then argued that the refusal of the Divisional Court to permit your Petitioner to raise these issues went to its very jurisdiction to make such an Order.

14. That this was especially so as the court had had a discretion to make such an Order even if it were satisfied that there had been “vexatious civil proceedings” brought by your Petitioner as it additionally had to be satisfied that they had been brought “habitually and persistently”.

15. That Mr Croxon QC also concurred with the submissions already made by Mr Straker QC in relation to the issue of authority and called for the production of the authorisation “submission” document.

16. That he informed the court that your Petitioner’s solicitors had written to the Treasury Solicitors in July 1999 to ask them for a copy of the “submission” but that no reply had been received.

17. That he further informed the court that in those circumstances your Petitioner had done all that he could to secure the submission’s production and requested that the court order it to be produced.

1. That counsel for HM Attorney-General explained that a copy of the “submission” document had not been provided to your Petitioner or his brother as it was privileged and there had been concerns that it would be copied to unauthorised persons.

2. That he then offered to produce it to the court but not the appellants which was then rejected by the court as being an option.

1. That at the conclusion of the hearing of the appeal the court reserved its judgment which was handed down on the 1 day of March 2000 and delivered by Lord Justice Schiemann.

2. That his Lordship reviewed the evidence contained in Ms Martin’s affidavits sworn on the 16 day of February 1996 and the 10 day of July 1996 and what had been submitted before the Divisional Court relating to whether sufficient evidence had been placed before the court regarding authorisation of the proceedings by the respective Law Officers and the subsequent ruling of Lord Justice Rose.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 612 paragraphs A-F)

3. That his Lordship then reviewed the various submissions made regarding dicta in Attorney-General -v- Hayward (1995) Times 20 November (1995) CA Transcript 1477 and Attorney-General -v- Williams (1996) COD 368 per Pill LJ relating to what evidence should be placed before the court to show the involvment of the relevant Law Officers in bringing proceedings under section 42(1) of the Supreme Court Act 1981.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 612 paragraphs G-J to page 613 paragraphs A-C)

4. That his Lordship then reviewed the effect of the making of Civil Proceedings Orders and the provisions for delegation of functions of the Attorney-General to the Solicitor-General under section 1(1)(c) of the Law Officers’ Act 1944.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 613 paragraphs C-H)

5. That his Lordship then considered whether there was any “burden placed on the Attorney General to lead evidence that the application is made by him after proper consideration of the relevant evidence”.

6. That his Lordship concluded that there was no such burden and applied dicta in Russian Commercial and Industrial Bank -v- Comptior d’Escompte de Mulhouse (1923) 2 KB 630 at pages 671 per Atkin LJ Warwick RDC -v- Miller-Mead (1962) 1 All ER 212 at page 215 (1962) Ch 441 at page 451 per Lord Evershed MR and at (1962) 1 All ER 212 at page 223 and (1962) Ch 441 at pages 463-464 per Dankwerts LJ relating to challenging the authority of the solicitor on the record.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 613 paragraph J page 614 paragraphs A-J to page 615 paragraph A)

7. That his Lordship further held that such challenges to the lawful authority to bring proceedings should be treated as a preliminary issue and set out the applicable provisions and procedures under the Civil Procedure Rules 1998 for making such challenges in future.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 615 paragraphs B-F)

8. That his Lordship summarised his ruling that he who challenges the fact that the solicitor has authority to commence proceedings must adduce evidence of that fact and in absence of such evidence it was not for the Attorney-General to adduce any evidence in rebuttal.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 615 paragraph G)

9. That his Lordship further held that dicta of Lord Justice Pill in Attorney-General -v- Hayward (1995) Times 20 November (1995) CA Transcript 1477 and Attorney-General -v- Williams (1996) COD 368 regarding evidence of authorisation could not be taken as authority that section 42 applications by the Treasury Solicitor made on the Attorney-General’s behalf must be held to be unauthorised in the absence of any contrary evidence.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 615 paragraph J)

10. That his Lordship further held that the challenges made by your Petitioner and his brother in the present case were too late and that affidavits filed by them just before the commencement of proceedings before the Divisional Court expressly disavowed such challenges with the result that evidence from the Attorney-General was rendered unnecessary.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 616 paragraphs A-C)

11. That his Lordship further considered the further affidavit filed in the Court of Appeal by Mr Jonathan Jones where he deposed that,

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 616 paragraphs D-E)

12. That his Lordship held that your Petitioner’s submissions that the Solicitor-General did not have the lawful authority from the Attorney-General to apply for the section 42 application was incorrect as it was the making of the application by the Treasury Solicitor which was authorised by the Solicitor-General who had applied his mind to the matter which had been authorised by the Attorney-General by the time that the application was made.

13. That his Lordship further held that the Law Officers’ Act 1997 was of no relevance and the fact that the Solicitor-General authorised the proceedings on the 29 day of March 1995 whilst the Attorney-General authorised him “to act” on the 30 day of March 1995 did not invalidate the further issue of the Notice of Motion issued well after that date.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 616 paragraphs F-J)

14. That his Lordship further held that Mr Jones’s affidavit should be admitted by the Court in view of your Petitioner’s and his brother’s submissions in relation to it.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 616 paragraph J to page 617 paragraphs A-B)

15. That his Lordship further observed that if the court were minded to uphold your Petitioner’s and his brother’s submissions this would merely result in a new application having to be made by the Attorney-General with evidence being placed before the court along the lines in Mr Jones’s affidavit with the court having to consider again whether the conditions for making a Civil Proceedings Order had been fulfilled.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 617 paragraphs B-D)

16. That his Lordship finally observed that as Mr Jones’s affidavit was in any event unnecessary although it referred to the “submission” to the Attorney-General an order for its production might raise complex issues regarding privilege which were unnecessary for the court to determine as such an order would not “advance the ends of justice” as no argument had been put forward to the contrary.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 617 paragraphs E-F)

17. That his Lordship then dismissed both your Petitioner’s appeal and his brother’s which were before the court.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 617 paragraph G)

18. That his Lordship then considered the 2 remaining points raised by your Petitioner in respect of which leave had not been granted relating to whether he had been fully heard before the Divisional Court and the length and duration of the Civil Proceedings Order.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 617 paragraphs H-J to page 618 paragraphs A-B)

19. That his Lordship observed that it was common ground as held in Yorkshire Bank plc -v- Hall, Hall -v- Yorkshire Bank plc (1999) 1 All ER 879 at pages 889-890, (1999) 1 WLR 1713 at page 1725 that the court had jurisdiction to expand a grant of permission to appeal but this should be sparingly exercised.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 618 paragraph D)

20. That his Lordship further observed that your Petitioner had filed an affidavit before the Divisional Court which consisted of argument but not evidence and had relied on a Skeleton Argument but that the court had seen nothing to suggest that your Petitioner had been denied any opportunity to put material before the court by way of evidence or submissions.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 618 paragraphs E-G)

21. That his Lordship then reviewed Mr Croxon QC’s submissions on behalf of your Petitioner that he had wanted to put before the Divisional Court and also before the Court of Appeal arguments that an indefinite Order was not justified in his case due to his peripheral involvment in only 8 actions and that his brother had been the main instigator of his litigation.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 618 paragraphs H-J)

22. That his Lordship conceded that such arguments might be persuasive to whether or not the Divisional Court ought to have made an unlimited Order but there had been no arguments put forward in his affidavit or Skeleton Argument before the Divisional Court or in his further affidavit in support of his application for permission to appeal which raised any of those particular arguments.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 618 paragraph J to page 619 paragraphs A-B)

23. That his Lordship further observed that permission should not be granted to pursue any of these points before the Court of Appeal as again there was no evidence available to support them.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 619 paragraphs C-D)

24. That his Lordship finally rejected Mr Croxon QC’s submission that the evidence could be ascertained from the files exhibited to the affidavits filed on behalf of the Attorney-General and that the Divisional Court did not apply its mind to the issue of whether it was appropriate to make an Order unlimited in time in respect of your Petitioner.

25. That his Lordship held that the Divisional Court had considered the question of the length and duration of the Order and that whether an examination of the 8 actions showed that an indefinite Order was outside its discretion was not an issue upon which it would be right to give leave to be argued in view of the fact that leave had already been refused.

(See Attorney-General -v- Foley and another (2000) 2 All ER 609 at page 619 paragraphs E-F)

1. That on the 1 day of March 2000 at the conclusion of the proceedings before the Court of Appeal your Petitioner sought leave to appeal to your Lordships’ House from the Order of the Court of Appeal.

2. That the Court of Appeal thereupon dismissed your Petitioner’s application for leave to appeal to your Lordships’ House.

1. Your Petitioner most respectfully submits to your Lordships’ House that the judgment of the Court of Appeal is wrong relating to the issue of whether the challenge to the authority of the Attorney-General was made too late in your Petitioner’s case.

2. The Court of Appeal confused the issue of whether the Attorney-General delegated the authority “to act” in this case under section 1(1)(c) of the Law Officers’ Act 1944 to the Solicitor-General with whether the Treasury Solicitors were lawfully on the record.

3. The precedents relied on by Lord Justice Schiemann in the Court of Appeal of Russian Commercial and Industrial Bank -v- Comptior d’Escompte de Mulhouse (1923) 2 KB 630 Warwick RDC -v- Miller-Mead (1962) 1 All ER 212 (1962) Ch 441 relate solely to whether the solicitors for a particular party were lawfully instructed by them which has always been treated as only being challengeable as a preliminary issue.

4. The issue of challenging the lawfulness of the delegation under section 1(1)(c) of the Law Officers’ Act 1944 and whether the Solicitor-General had been authorised “to act” in the present case were issues that related to the lawful constitution of the court and its related jurisdiction to hear the case and make the Order sought which was a completely separate issue from whether the Treasury Solicitors were lawfully on the record.

5. The issue of the lawfulness of the delegation and authorisation of your Petitioner’s application by the Law Officers related to the requirement that the proceedings be brought by the Attorney-General as a safeguard against an application which can curtail the constitutional right of access to a court

6. This was clearly recognised in Re Boaler (1915) 1 KB 21 and Ebert -v- Venvil (1999) 3 WLR 670 and establishment of this fact was not simply an attempt to establish that the solicitors on the record had authority but that the underlying constitutional safeguard had been complied with.

7. The issue had clearly been raised by your Petitioner and the judgment of the Court of Appeal is therefore in conflict with its own previous judgment in Attorney-General -v- Hayward (1995) Times 20 November (1995) CA Transcript 1477 which although considered was not specifically overturned by Attorney-General -v- Foley and another (2000) 2 All ER 609.

8. Your Petitioner therefore submits that the law is now rendered unclear in relation to this issue in view of these conflicts between Attorney-General -v- Hayward and Attorney-General -v- Foley and another (2000) 2 All ER 609 especially as any future Court of Appeal may have to choose which one they follow if the matter is raised again.

9. The judgment of the Court of Appeal is also in conflict with Deutsche Bank und Disconto Gesellschaft -v- Banque de Marchands de Moscou (1938) LT Vol 158 364 per Scrutton LJ at pages 366 Greer LJ at pages 366-367 and Romer LJ at page 367 where the Court of Appeal’s inherent power and duty to see that it was properly constituted was exercised by enquiries initiated by itself which is what occurred in Hayward’s case.

10. It is also in conflict with Norwich Corporation -v- Norwich Electric Tramways Co Ltd (1906) 2 KB 129 per Vaughan Williams LJ at page 121 where it was held that points of law and jurisdiction may be argued on appeal although not raised before the High Court which further supports the stance taken by the Court of Appeal in Attorney-General -v- Hayward.

11. The same principle was applied to the County Court in Pittalis -v- Grant (1989) 3 WLR 139 per Nourse LJ at page 145 paragraphs A-C.

12. Your Petitioner therefore contends that Attorney-General -v- Foley and another (2000) 2 All ER 609 has established a precedent that any issue relating to jurisdiction or the lawful constitution of the court must be taken as a preliminary issue as with the case of challenging authority of solicitors which the judgments in relation to that issue do not seek to go beyond.

13. The judgment of the Court of Appeal also is in conflict with the criminal authorities and approaches of the court in R -v- Waller (1910) 1 KB 364 at page 367 R -v Turner (1910) 1 KB 346 R -v- Metz (1915) 84 LJKB 1462 Price -v- Humphries (1958) 2 QB 354 at page 356-358 and Anderton -v- Frost (1984) RTR 106.

14. In R -v- Bates (1911) 1 QB 964 it was held that the lack of the Attorney-General’s fiat authorising a prosecution under section 7 of the Explosive Substances Act 1883 was a jurisdiction issue that resulted in the conviction being quashed after being taken by the court of its own volition.

15. Your Petitioner contends that this is again in conformity with Deutsche Bank und Disconto Gesellschaft -v- Banque de Marchands de Moscou (1938) LT Vol 158 364 and Norwich Corporation -v- Norwich Electric Tramways Co Ltd (1906) 2 KB 129 and that civil cases where jurisdiction is being challenged should not be in a different category from criminal ones.

16. Your Petitioner therefore most respectfully submits that these various conflicts ought therefore to be considered and resolved by your Lordships’ House.

1. Your Petitioner most respectfully contends that Attorney-General -v- Foley and another (2000) 2 All ER 609 is wrong relating to the issue of whether the Solicitor-General had “authorisation to act” in the present case.

2. The making of a section 42 Order was a function exercisable by the Attorney-General which if authorised by him to “act in any particular case” could be exercised by the Solicitor-General under section 1(1)(c) of the Law Officers’ Act 1944.

3. Your Petitioner therefore relies upon the following propositions :-

4. The judgment of the Court of Appeal relating to the delegation issue is further in conflict with its subsequent judgment in R -v- Chief Constable of Greater Manchester Police ex parte Lainton CA transcript 28 March 2000 per Laws LJ at paragraphs 18-25 in relation to the strictness of the nature of delegated authority.

1. Your Petitioner most respectfully submits to your Lordships’ House that the Court of Appeal adopted a far too rigid approach regarding whether your Petitioner should have been permitted to argue the remaining points in respect of which leave had not been granted.

2. The issues which your Petitioner sought to raise were clearly relevant to the validity of the making of the Order against him and the overall fairness of the proceedings under article 6(1) of Schedule 1 of the Human Rights Act 1998 which will be retrospective to your Petitioner’s case under section 7(1)(b) and 22(4) of that Act in the event that your Lordships’ House grants leave.

3. The Court of Appeal itself may have infringed article 6(1) of Schedule 1 of the Human Rights Act 1998 by its over rigid application of Yorkshire Bank plc -v- Hall, Hall -v- Yorkshire Bank plc (1999) 1 All ER 879 and Greenhalls Management -v- Canavan CA transcript 29 April 1997 by in effect denying your Petitioner the very essence of right of access to the court.

4. Your Petitioner contends that the Court of Appeal did not have jurisdiction in 1997 to grant limited leave in any event as there was no provision for that in Order 59 rule 14(2)(b) RSC.

5. This was recognised in R -v- Secretary of State for Transport ex parte Richmond upon Thames London Borough Council and ors (1994) 1 All ER 577 per Laws J at page 600 paragraphs H-J regarding granting leave to apply for Judicial Review.

6. The power to give the Court of appeal jurisdiction to grant limited leave has now subsequently been enacted in Part 52 rule 3.(7)(a) of the Civil Procedure Rules 1998 as amended which came into force on the 2 day of May 2000 but this is not retrospective regarding previous applications and appeals.

7. Your Petitioner therefore most respectfully submits that should your Lordships’ House grant leave to appeal it will be open to your Petitioner to seek to argue the remaining issues in respect of which he was originally not granted leave by the Court of Appeal especially as they are dealt with in its judgment.

1. Your Petitioner most respectfully submits to your Lordships’ House that the 8 actions taken into account by the Divisional Court did not merit an indeterminate Order.

2. Your Petitioner contends that all of the circumstances of the case it was disproportionate and too harsh as well as failing to differentiate his case from that of his brother.

3. Once an indeterminate Order has been made there exists no power to vary or rescind it except on appeal as held in Rohrberg -v- Charkin (1995) Times 30 January CA 24 January 1985 85/15 per Donaldson MR.

4. However in Re C (1989) Times 14 November Brooke J held that there was an inherent power to set aside an order after a limited time and that this was implied by Becker -v- Teale (1971) 1 WLR 1475 an earlier decision of the Court of Appeal.

5. As Rohrberg -v- Charkin (1995) Times 30 January CA 24 January 1985 85/15 was a decision of the Court of Appeal your Petitioner contends that it correctly states the law.

6. This principle was recently affirmed by the Divisional Court in Mathew -v- Attorney-General DC transcript 24 May 1999 (1999) COD 393 per Ognall J that once an order has been validly made there is no jurisdiction to set it aside apart from on appeal.

7. Your Petitioner further most respectfully submits that the power to make an unlimited Order is unique in relation to the fact that all other orders of the court may be reviewed if changes of circumstances occur additionally to the appellate avenues otherwise open.

8. Your Petitioner draws to the attention of your Lordships’ House sections 34(1) 34A and 35(1)(a)(b) of the Road Traffic Offenders Act 1988 which provide for the making of disqualification orders being usually made for definite periods of time.

9. Section 42(1) of the Road Traffic Offenders Act 1988 makes provision for reviews of these Orders in addition to any rights of appeal under section 38(1) of the Road Traffic Offenders Act 1988 or the Criminal Appeal Act 1968.

10. Similar provisions relate to Bankruptcy Orders which again are made for limited periods under section 279(2)(a) and (b) of the Insolvency Act 1986 before automatic discharge with provision for annulment and review and rescission under sections 282(1)(a) and (b) and 375(1) of the Insolvency Act 1986 in addition to normal appeal remedies under section 375(2) of that Act.

11. Your Petitioner most importantly draws to the attention of your Lordships’ House the fact that prisoners’ discretionary life sentences for any offence as well as those serving life sentences for murder may apply to the Parole Board under section 34(3)(a) and (5) and section 35(2) of the Criminal Justice Act 1991.

12. In relation to disqualification of Company Directors these Orders under section 2(1) and 2(2)(b)(c) of the Company Directors Disqualification Act 1986 are again made for a limited time with clear guidelines regarding their length dependent on the particular seriousness of the case as laid down in Ray -v- Millard (1994) 15 Cr App R 445 per McCowan LJ.

13. There have only been 2 Civil Proceedings Orders made under section 42(2) of the Supreme Court Act that have been limited in time since the power was introduced by the 1981 Act.

14. In Attorney-General -v- Price DC transcript 19 March 1997 per Brooke LJ at page 27 paragraph G and page 30 paragraphs D-G to page 31 paragraphs A-F the first Order was made limited to a period of 15 years.

15. In Attorney-General -v- Yeo DC transcript 8 December 1999 per Smith J at paragraphs 25 and 26 a limited Order of 10 years was made which attempted to take into account all of the matters and facts surrounding the litigation and which was proportionate as the case was not one of the worst.

16. Your Petitioner therefore most respectfully submits to your Lordships’ House that the issue of when an indefinite Civil Proceedings Order or one limited in time should be made and the relevant guidelines laying down the criteria applicable should now be considered and clarified by your Lordships’ House.

17. This raises an issue of proportionality and in the interests of a fair hearing under article 6(1) of Schedule 1 of the Human Rights Act 1998 which would imply that full reasons ought to be given for either making an indeterminate Order or one limited in time.

18. Neither of these issues were considered in either Attorney-General -v- Price or Attorney-General -v- Yeo which has been confirmed by the fact that apart from those 2 cases all orders have been made for an indeterminate period irrespective of whether there have been such cases which merited such orders or not.

19. Your Petitioner contends that this is clearly out of step with principles applicable to sentencing in criminal cases where each sentence apart from those which are mandatory life sentences are considered with regard to all the circumstances relating to the offence and the offender concerned.