“The principle of construction for which Mr Ewing contends is sound.”

“But if it includes an abridgement of the rights of the subject in regard to redress for crimes committed in regard to his person or his property, one would, I venture to think justly expect the Legislature, instead of using words of general import, to make it quite clear that criminal proceedings were intended to be included in the enactment. “Statutes which encroach on the rights of the subject whether as regards person or property, are similarly” (the learned author has in the preceding chapter been dealing with the construction of Penal Acts)” subject to a strict construction..... It is a recognised rule that they should be interpreted, if possible, so as to respect such rights.” (Maxwell on the Interpretation of Statutes, 5th ed. p 461.)’

-------------------------------------------------------------------------------“a strict construction of penal laws, or statutes encroaching on rights, especially the liberties of the subject, or imposing burdens; all are cases where general words have been cut down to a narrower meaning in endeavouring to seek the intention of the Legislature, not from the widest meaning of the words used, but from the considerations that must have influenced Parliament in framing the enactment.”------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------“In the case of this statute the Legislature clearly intends to interfere with some rights of persons, and uses words capable of extension to rights of litigation in criminal matters, but in my opinion more suitable to the subject-matter of rights of litigation in civil matters only. In my view, looking at the enacting parts of the statute only, the presumption against interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to that meaning which effects the least interference with those rights.”

“I decline to make this more serious interference with the liberty of the subject, unless the Legislature uses language clear enough to convince me that that was its intention, and I think ample meaning is provided for its words, and ample remedy is provided for the grievance in respect of which Parliament was legislating by putting the narrower construction on the general words it has used.”

“3.––(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section––

“perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled”----------------“it cannot be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own”

“6.––(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

‘19. I am satisfied on the facts adduced in evidence before us that Mr Barker has instituted vexatious civil proceedings. “Vexatious” is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process. Those conditions are in my view met in this case. Many of the proceedings show no justiciable complaint and, as has been pointed out, several writs have been issued against individual officers in the same department when one writ would have served against them all.

20. I am furthermore satisfied that these vexatious civil proceedings have been instituted without any reasonable ground. All the proceedings have been struck out; none has gone to trial; none has been settled. Leave to appeal against Alliott J’s striking-out order in relation to the 19 actions was refused. In truth, none of these actions could have succeeded.

21. The calendar does, however, reveal that from the issue of the first bunch of eight writs on 15 December 1997 to the issue of the last County Court summons on 18 March 1998 was a three-month period within which this flurry of litigious activity was confined. Only one person, a solicitor, Mr Ryall, was sued more than once. While writs were issued against individual officers of the Hertfordshire County Council, the County Council itself was only sued once.

22. From extensive experience of dealing with applications under section 42 the court has become familiar with the hallmark of persistent and habitual litigious activity. The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop.

23. Mr Tam acknowledges that the words “habitually and persistently” connote an element of repetition, but says that that repetition need not be over a long period. I would accept that qualification, but there must nevertheless be that element of repetition and in my judgment it is not shown here. I would

accordingly hold that the conditions for making an order under section 42(1) are not satisfied.’-------------------------------------------------------------------------------------------------------------------------

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“It seems to me however that it is wholly incontrovertible that in this case the respondent, Mr Bishop, has in truth persistently and without any reasonable ground instituted vexatious civil proceedings and made vexatious applications in civil proceedings. He has sought to relitigate, time and again, matters that have been decided against him and which, for all the world, are entirely finalised.”

“I have come to the conclusion that a civil proceedings order ought not to be made in this case. My conclusions are:

“‘Habitually” requires a continuance and permanence of some tendency, something that has developed into a propensity that is present from day to day. A habit results from a condition of mind that has become stereotyped. In terms of conduct its presence is demonstrated by the frequency of acts that by repetition have acquired the characteristics of being customary a usual: behaviour that is to be regarded as almost inevitable when the appropriate conditions are present. The tendency will ordinarily be required to be demonstrated by numerous instances of reiteration’.

“(1) Where the Court is satisfied, on application, that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner, the Court may order that no further proceedings be instituted by the person in the Court or that a proceeding previously instituted by the person in the Court not be continued, except by leave of the Court.”

“Suffice it to say that, whilst there may well be strong grounds for amending the law, the amendment must be achieved in a constitutional manner and not by a process of modification in practice.”

--------------------------------------------------------------------------------------------------------------------------------------------------------------“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.”

--------------------------------------------------------------------------------------------------------------------------------------------------------------“Now those civil actions cover quite a long period of time against a number of different defendants, but it is quite clear, even from that list, that at least some of them had been successful. Others may well have been unsuccessful, but to bring an unsuccessful action is not necessarily to be vexatious; people are always losing actions without rendering themselves liable to this type of proceedings. So we have looked merely at some of them in detail in order see whether the Attorney General has proved his case.”

“Was the case one which the County Court Judge was justified in treating as frivolous and vexatious? In my opinion it was clearly such a case. In order to bring a case within the description it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide and contend that he had a grievance which he was entitled to bring before the Court.”

“This Court has given the Respondent the opportunity of being heard, but it is not obliged by the section to make an order. What the section is saying is, if the Court is satisfied that the actions and the applications are vexatious, the Court may make an order. So plainly, this Court has a discretion.”

-------------------------------------------------------------------------------“However, the Court has a jurisdiction, and a discretionary jurisdiction, as to whether or no to make such an Order and I have applied my mind to whether or no the present is a case where an Order ought to be made.”------------------------------------

“Before such an order can be made, the court must be satisfied that he has habitually and persistently and without any reasonable ground, instituted vexatious civil proceedings, made vexatious applications in civil proceedings or instituted vexatious prosecutions. In the event that the court is satisfied in relation to those matters, the court has a discretion, after hearing the person against whom the order is sought or giving him the opportunity of being heard, to make, as is sought in the present case, an all proceedings order.”

“Before us this morning is listed an application under section 42 of the Supreme Court Act 1981. The Attorney-General seeks an all proceedings order against the Respondent under that section. Were such an order to be granted it would of course mean that the Respondent would be prohibited from bringing or continuing any civil or criminal proceedings or making any application in civil proceedings without the leave of the High Court. It goes without saying that the jurisdiction is important but also draconian and has to be exercised with great care. In the result, for reasons I shall explain shortly, we propose to adjourn the application.”

“4 I should make it clear that we have not decided that the course of the Respondent’s litigation against his family would justify an order under section 42, having by no means heard full argument. But it is right to say that the voluminous papers, which of course we have studied with some care, disclose a powerful prima facie case if that litigation is looked at in isolation.”---------------------------------------------------------------------------------------

“5. We have today questioned Mr Parlett with some care as to his present intentions in relation to any litigation which might resurrect issues canvassed before His Honour Judge Jack. I emphasise that we have not sought any undertaking from him. That we think would be of doubtful propriety. He has, however, made it clear to us that he accepts that he can go no further in seeking to escape the effects of Judge Jack’s judgment, whether by the issue of civil or criminal process. If that is his true state of mind and he sticks to it, it would not be right to make a section 42 order today, not least given the history of other unconnected and perfectly proper litigation. We therefore canvassed the possibility with Mr Jay and with Mr Parlett himself that these proceedings might be adjourned. If after 12 months it is apparent that Mr Parlett indeed has not gone back to court to raise again these old issues arising out of his dispute with his family, then the Attorney-General would no doubt seek leave to withdraw the section 42 application. If, unhappily, Mr Parlett were to return to the fray and seek again to open up disputes settled by His Honour Judge Jack in an appeal, then no doubt the Attorney-General would seek to pursue the application under section 42.”

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“9. In those circumstances, it seems to me right to adjourn the Attorney’s application under section 42. I would adjourn it for 12 months. At the end of that period the Attorney would no doubt seek to have the matter relisted and, as I have already said, it may then appear appropriate either to give leave to withdraw the application or unhappily to proceed with it. It goes without saying that nothing in this short judgment is intended to indicate what the result of the section 42 application would ultimately be if it were necessary to argue it out. It is obviously to be hoped in the public interest, and indeed in Mr Parlett’s interest, that such a course will not be necessary. It very much depends upon his own future conduct. I would make the Order that I have indicated.”

“1. The Attorney General seeks a civil proceedings order under section 42 of the Supreme Court Act 1981 against Mr Paul Barker. It is unnecessary for present purposes to recite the familiar terms of section 42(1)(a) and (b), save to point out that before the court can make an order under the section it must be satisfied that the statutory precondition of an order is fulfilled, namely that the person against whom the order is sought has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings or made vexatious applications whether in the High Court or any inferior court and whether against the same person or against different persons.

2. If that condition is not satisfied, the court has no discretion to make a civil proceedings order. If the condition is satisfied the court has a discretion to make such an order, but it is not obliged to do so. Whether, where the condition is satisfied, the court will exercise its discretion to make an order, will depend on the court’s assessment of where the balance of justice lies, taking account on the one hand of a citizen’s prima facie right to invoke the jurisdiction of the civil courts and on the other the need to provide members of the public with a measure of protection against abusive and ill-founded claims. It is clear from section 42(3) that the making of an order operates not as an absolute bar to the bringing of further proceedings but as a filter.”

--------------------------------------------------------------------------------------------------------------------------------------------------------------“If however I am wrong in that conclusion I would not in any event exercise my discretion to make an order against Mr Barker. I do not consider that an order is necessary to prevent further abuse by him of the court process. Mr Barker appreciates that repetition of his previous resort to litigation would damage his mental health and disrupt his contact with his children, which is what he cares most about. He also fully appreciates that if he were to repeat his former conduct he would have no defence at all to an application by the Attorney General.

24. Mr Tam points out that the court could make an order for a limited period, as the section expressly permits, or could adjourn the hearing to see if all goes well. Those are possible options. There is, however, no real point in the first course if the court is satisfied, as I for my part am, that Mr Barker will not repeat his previous conduct in the months ahead. I further think that it is better that he should not have the matter hanging over him as a possible source of anxiety. He has told us that he wants to forget about the unhappy events of November 1997 to March 1998, and it is much better that he should do so. He has offered his word to the court that he will not repeat his previous conduct and I for my part would accept him as meaning what he says. I would therefore decline to make any order on this application.”

“All this makes it clear that judicial review is far removed from civil proceedings between party and party, and Parliament cannot have intended proceedings for judicial review to be embraced by the words “civil proceedings.”

“On the contrary, the words “civil proceedings”, unless specially defined, are apt only to cover civil suits involving private law proceedings. The words are not apt to include proceedings for judicial review.”

“A fair construction seems to be that where the computation is to be for the benefit of the person affected as much time should be given as the language admits of, and where it is to his detriment the language should be construed as strictly as possible. Here the result may be to make a man a bankrupt, which is not a benefit to him, nor necessarily to the whole of his creditors. The bankruptcy law is a law of public social policy, and affects in a very detrimental manner the status of those who are brought under its operation; in old times, indeed, to make a man a bankrupt was to make him a criminal; therefore, in a Bankruptcy Act such a provision as the one in question ought to be construed as much for the debtor’s benefit as possible.”--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------“Again, there is the rule of construction that if a statute, which so affects a man’s status as to be in effect a penal enactment, is capable of two constructions, that one should be adopted which is most favourable to the person affected.”---------------------------

“I do not regard this as a merely technical matter, for bankruptcy proceedings are of a peculiar character. They involve quasi-penal consequences to the debtor, and it is essential that all those forms, the object of which is to prevent injustice, should be strictly followed.”

“It is asked to make an order which will affect the mode by which the other creditors can enforce their claims against the debtor, and may interfere with them considerably, an order which will put in force the extraordinary power of the Court of Bankruptcy.”

“Bankruptcy proceedings are not like ordinary proceedings; they are a very series matter, not only to the debtor himself, but to all his other creditors;”-------------------------------------------------------

“The reason for conferring this exceptional power on the court in exercising bankruptcy jurisdiction must, I think, lie in the fact that bankruptcy results in a serious restriction on the debtor’s freedom of action and on his reputation.”

“Although by consenting to a judgment the debtor is estopped every where else from saying that there was no debt due––although the judgment is binding upon him by reason of his consent, and of its being the judgment of the Court, yet no such estoppel is effectual as against the Court of Bankruptcy. The Court is not estopped by the conduct of the parties, but it has a right to inquire into the debt.”

“As a matter of law the judgment, therefore, stands as a good judgment against John Fraser, and it cannot be questioned by him in any Court, except the Court of Bankruptcy.”

“Then it is said that the question of the validity of the debt is already res judicata by the refusal of this Court to set aside the judgment. But that decision was an adjudication upon the question whether the judgment could be set aside at the instance of the judgment debtor himself; the present question is whether, the judgment standing as a good judgment, the debt can in the Court of Bankruptcy constitute a good petitioning creditor’s debt.”

“It is old law in bankruptcy that, neither upon an attempt to prove a debt, nor upon a petition for an adjudication of bankruptcy or a receiving order against a debtor, is a judgment against him for the debt conclusive.”-----------------------------------------------------------------------------------------------------------“Can the judgment be treated as conclusive in bankruptcy because the debtor has unsuccessfully attempted to set it aside? I think not, and I cannot see how the matter is any more res judicata because there has been an unsuccessful appeal to this court.”

“Secondly, there has been no breach of the principle of equality of arms inherent in the concept of a fair trial (see, mutatis mutandis, the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, para. 28). The Occupational Association did not enjoy a procedural position any more advantageous than Mrs. Feldbrugge’s, in that had the experts expressed an opinion unfavourable to its standpoint, the Association would likewise have been unable to present oral or written arguments or to challenge the validity of the unfavourable opinion. No lack of fair balance thus obtained between the parties in this respect.

On the other hand, the procedure followed before the President of the Appeals Board by virtue of the Netherlands legislation was clearly not such as to allow proper participation of the contending parties, at any rate during the final and decisive stage of that procedure. To begin with, the President neither heard the applicant nor asked her to file written pleadings. Secondly, he did not afford her or her representative the opportunity to consult the evidence in the case-file, in particular the two reports - which were the basis of the decision - drawn up by the permanent experts, and to formulate her objections thereto. Whilst the experts admittedly examined Mrs. Feldbrugge and gave her the opportunity to formulate any comments she might have had, the resultant failing was not thereby cured. In short, the proceedings conducted before the President of the Appeals Board were not attended, to a sufficient degree, by one of the principal guarantees of a judicial procedure.”

“61. The Ruiz-Mateos family alleged a violation of the principle of equality of arms. The Counsel for the State, their opponent in the civil proceedings, was able to submit to the Constitutional Court written observations on the lawfulness of Law no. 7/1983, whereas they were not allowed to do so because they were held to lack locus standi;”-----------------------------------------------------

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63. The Court will examine the complaint in the light of the whole of paragraph 1 of Article 6 (art. 6-1) because the principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that proceedings should be adversarial (see, among other authorities, mutatis mutandis, the Brandstetter v. Austria judgment of 28 August 1991, Series A no. 211, p. 27, para. 66).

The right to an adversarial trial means the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party (see, mutatis mutandis, the same judgment, p. 27, para. 67). Admittedly proceedings before a constitutional court have their own characteristics which take account of the specific nature of the legal rules to be applied and the implications of the constitutional decision for the legal system in force. They are also intended to enable a single body to adjudicate on a large number of cases relating to very different subjects. Nevertheless, it may happen that, as here, they deal with a law which directly concerns a restricted circle of persons. If in such a case the question whether that law is compatible with the Constitution is referred to the Constitutional Court within the context of proceedings on a civil right to which persons belonging to that circle are a party, those persons must as a rule be guaranteed free access to the observations of the other participants in these proceedings and a genuine opportunity to comment on those observations.

64. The Court sees no reason to depart from this rule in the present case. It cannot accept the distinction drawn by the Government. In view of the closeness of the link noted above (see paragraph 59 above), it would be artificial to dissociate the role of the executive - on whose authority the decision to expropriate was taken - from that of the Directorate General for National Assets - the beneficiary of the measure -, and even more so to purport to identify a real difference between their respective interests.

65. In November 1984 and November 1989 the Counsel for the State filed with the Constitutional Court, by virtue of Article 37 para. 2 of Institutional Law no. 2/1979 (see paragraph 27 above), observations affirming the constitutional validity of Law no. 7/1983 (see paragraphs 16 and 22 above). The applicants were not given an opportunity to reply thereto, although it would clearly have been in their interests to be able to do so before the final decision.

66. According to the Government, the Constitutional Court was able to examine the applicants’ arguments by referring to the very voluminous memorials which the latter had submitted in the civil courts pursuant to Article 35 para. 2 of Institutional Law no. 2/1979 (see paragraphs 14 and 22 above) inasmuch as the full files of the proceedings in those courts had been transmitted to it.

67. The Court does not find this argument convincing.

In the first place, Article 35 para. 2 fixes for the parties - in this instance the applicants and the Counsel for the State - and for the Attorney General’s department a single time-limit for putting forward their views on the appropriateness of submitting a preliminary question. Whereas the applicants’ written submissions also raised substantive issues, those of the Counsel for the State, which were very short, dealt only with procedural questions. In any event, even if the latter had also given his opinion on the merits, the applicants would not have been able to challenge it in the civil courts or in the Constitutional Court. On the other hand, the Counsel for the State had advance knowledge of their arguments and was able to comment on them in the last instance before the Constitutional Court.

68. There has accordingly been a violation of Article 6 para. 1

(art. 6-1).”

“29. As in its judgment in the Borgers case (p. 32, para. 26), the Court considers, however, that great importance must be attached to the part actually played in the proceedings by the member of the Attorney-General’s department, and more particularly to the content and effects of his observations. These contain an opinion which derives its authority from that of the Attorney-General’s department itself. Although it is objective and reasoned in law, the opinion is nevertheless intended to advise and accordingly influence the Supreme Court. In this connection, the Government emphasised the importance of the department’s contribution to ensuring the consistency of the court’s case-law and, more particularly in the instant case, upholding the public interest.

30. In its judgment of 17 January 1970 in the Delcourt v. Belgium case the Court noted in its reasons for holding that Article 6 para. 1 (art. 6-1) was applicable that “the judgment of the Court of Cassation ... may rebound in different degrees on the position of the person concerned” (Series A no. 11, pp. 13-14, para. 25). It has reiterated that idea on several occasions (see, mutatis mutandis, the following judgments: Pakelli v. Germany, 25 April 1983, Series A no. 64, p. 17, para. 36; Pham Hoang v. France, 25 September 1992, Series A no. 243, p. 23, para. 40; and Ruiz-Mateos v. Spain, 23 June 1993, Series A no. 262, p. 25, para. 63). The same applies in the instant case, since the outcome of the appeal could have affected the amount of Mr Lobo Machado’s retirement pension.

31. Regard being had, therefore, to what was at stake for the applicant in the proceedings in the Supreme Court and to the nature of the Deputy Attorney-General’s opinion, in which it was advocated that the appeal should be dismissed (see paragraph 14 above), the fact that it was impossible for Mr Lobo Machado to obtain a copy of it and reply to it before judgment was given infringed his right to adversarial proceedings. That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (see, among other authorities and mutatis mutandis, the following judgments: Ruiz-Mateos, previously cited, p. 25, para. 63; McMichael v. the United Kingdom, 24 February 1995, Series A no. 307-B, pp. 53-54, para. 80; and Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 16, para. 42).

The Court finds that this fact in itself amounts to a breach of Article 6 para. 1 (art. 6-1).”

“39. As in its judgments in the Borgers case (see p. 32, para. 26) and the Vermeulen case (see p. 233, para. 31), the Court considers, however, that great importance must be attached to the part actually played in the proceedings by the member of the procureur général’s department, and more particularly to the content and effects of his submissions. These contain an opinion which derives its authority from that of the procureur général’s department itself. Although it is objective and reasoned in law, the opinion is nevertheless intended to advise and accordingly influence the Court of Cassation. In this connection, the Government emphasised the importance of the department’s contribution to ensuring the consistency of the Court of Cassation’s case-law.

40. In its judgment in the Delcourt case the Court noted in its reasons for holding that Article 6 para. 1 (art. 6-1) was applicable that “the judgment of the Court of Cassation ... may rebound in different degrees on the position of the persons concerned” (pp. 13-14, para. 25). It has reached a similar conclusion in several other cases concerning different countries (see, mutatis mutandis, the following judgments: Pakelli v. Germany, 25 April 1983, Series A no. 64, p. 17, para. 36; Pham Hoang v. France, 25 September 1992, Series A no. 243, p. 23, para. 40; Ruiz-Mateos v. Spain, 23 June 1993, Series A no. 262, p. 25, para. 63; Lobo Machado v. Portugal cited above, p. 206, para. 30; and Vermeulen v. Belgium cited above, p. 233, para. 32). The same applies in the instant case, since the appeal on points of law concerned the lawfulness of the applicant’s removal from the register and the consequential ban on his practising medicine.

41. Regard being had, therefore, to what was at stake and to the nature of the submissions made by the avocat général, the fact that it was impossible for the applicant to reply to them before the end of the hearing infringed his right to adversarial proceedings. That right means in principle the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed (see, among other authorities and mutatis mutandis, the Vermeulen judgment cited above, p. 234, para. 33; and the Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 108, para. 24).

42. Accordingly, there has been a violation of Article 6 para. 1 (art. 6-1).”

“52. The Court finds that the proceedings before the Appeals Board did not enable Mrs Schuler-Zgraggen to have a complete, detailed picture of the particulars supplied to the Board. It considers, however, that the Federal Insurance Court remedied this shortcoming by requesting the Board to make all the documents available to the applicant - who was able, among other things, to make copies - and then forwarding the file to the applicant’s lawyer (see, as the most recent authority, mutatis mutandis, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, paras. 34-39)”----------------------------------------------------------------------------------

“31. As in its judgment in the Borgers case (see p. 32, para. 26), the Court considers, however, that great importance must be attached to the part actually played in the proceedings by the member of the procureur général’s department, and more particularly to the content and effects of his submissions. These contain an opinion which derives its authority from that of the procureur général’s department itself. Although it is objective and reasoned in law, the opinion is nevertheless intended to advise and accordingly influence the Court of Cassation. In this connection, the Government emphasised the importance of the department’s contribution to ensuring the consistency of the court’s case-law.”

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“33. Regard being had, therefore, to what was at stake for the applicant in the proceedings in the Court of Cassation and to the nature of the submissions made by Mr du Jardin, the avocat général, the fact that it was impossible for Mr Vermeulen to reply to them before the end of the hearing infringed his right to adversarial proceedings. That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observation filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (see, among other authorities and mutatis mutandis, the following judgments: Ruiz-Mateos, previously cited, p. 25, para. 63; McMichael v. the United Kingdom, 24 February 1995, Series A no. 307-B, pp. 53-54, para. 80; and Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 16, para. 42).

The Court finds that this fact in itself amounts to a breach of Article 6 para. 1 (art. 6-1).”

26. ---------------------------------------------------------------------------

“Nevertheless the opinion of the procureur général’s department cannot be regarded as neutral from the point of view of the parties to the cassation proceedings. By recommending that an accused’s appeal be allowed or dismissed, the official of the procureur général’s department becomes objectively speaking his ally or his opponent. In the latter event, Article 6 para. 1 (art. 6-1) requires that the rights of the defence and the principle of equality of arms be respected.

27. In the present case the hearing on 18 June 1985 before the Court of Cassation concluded with the avocat général’s submissions to the effect that Mr Borger’s appeal should not be allowed (see paragraph 15 above). At no time could the latter reply to those submissions: before hearing them, he was unaware of their contents because they had not been communicated to him in advance; thereafter he was prevented from doing so by statute. Article 1107 of the Judicial Code prohibits even the lodging of written notes following the intervention of the member of the procureur général’s department (see paragraph 17 above).

The Court cannot see the justification for such restrictions on the rights of the defence. Once the avocat général had made submissions unfavourable to the applicant, the latter had a clear interest in being able to submit his observations on them before argument was closed. The fact that the Court of Cassation’s jurisdiction is confined to questions of law makes no difference in this respect.

28. Further and above all, the inequality was increased even more by the avocat général’s participation, in an advisory capacity, in the Court’s deliberations. Assistance of this nature, given with total objectivity, may be of some use in drafting judgments, although this task falls in the first place to the Court of Cassation itself. It is however hard to see how such assistance can remain limited to stylistic considerations, which are in any case often indissociable from substantive matters, if it is in addition intended, as the Government also affirmed, to contribute towards maintaining the consistency of the case-law. Even if such assistance was so limited in the present case, it could reasonably be thought that the deliberations afforded the avocat général an additional opportunity to promote, without fear of contradiction by the applicant, his submissions to the effect that the appeal should be dismissed.

29. In conclusion, having regard to the requirements of the rights of the defence and of the principle of the equality of arms and to the role of appearances in determining whether they have been complied with, the Court finds a violation of Article 6 para. 1 (art. 6-1).”

41. ---------------------------------------------------------------------------

“In this connection, the Court notes that the Insurance Court had rejected the applicant’s claims, at least partly on their merits, without transmitting to him the opinion and files which it had obtained from the Compensation Office and the Headquarters of the Military District. Although it was open to the applicant to consult these documents on the case file in the Insurance Court, it was apparently only as a result of their being mentioned in its decision of 19 October 1989 that the applicant was made aware that they had been included in the case file. At the time of the notification of its decision the Insurance Court had already returned the master and medical files to the Headquarters (see paragraph 11 above). The Court is not therefore persuaded by the Government’s argument on this point and does not consider that the possibility available to the applicant of consulting the documents in the Insurance Court is of significance for the assessment of the fairness of the proceedings in the Supreme Court.

42. At the public hearing on 22 February 1995 the Agent of the Government stated that it was consistent practice not only in the Supreme Court but also at first instance in the Insurance Court not to communicate documents of the kind in question (see paragraph 14 above).

The Court notes that, in the light of this practice, the Supreme Court could assume that the Insurance Court had not transmitted the Compensation Office’s opinion and the military files to the applicant; and hence that in the proceedings before it the applicant’s capability of challenging the contested decision was adversely affected. The Supreme Court could, moreover, assume that the applicant, who did not have the assistance of a lawyer, would not be aware of the said practice. Despite these circumstances the Supreme Court, which was competent to examine the merits of the case, did not take any measures to make the documents available to him. It is not material to the resultant duty of the Supreme Court under Article 6 para. 1 (art. 6-1) either that the applicant did not complain about the non-communication of the documents mentioned in the Insurance Court’s decision or that he had access to the case file such as it existed in the Supreme Court (see paragraphs 11 and 13 above). In short the procedure followed before the Supreme Court was not such as to allow proper participation of the appellant party, Mr Kerojärvi (see the above-mentioned Feldbrugge judgment, pp. 17-18, para. 44; the above-mentioned Schuler-Zgraggen judgment, p. 18, para. 52; and the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, pp. 53-54, para. 80).

43. In the light of the foregoing, the applicant cannot be said to have received a fair trial in the procedure before the Supreme Court.

There has accordingly been a violation of Article 6 para. 1 (art. 6-1).”

“67. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party.

Various ways are conceivable in which national law may secure that this requirement is met. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment thereon. This is henceforth the case, as far as the Vienna Court of Appeal is concerned (see paragraph 8 above).

In the present case it is common ground that no copy of the submissions of the Senior Public Prosecutor was sent to the applicant and that he was not informed of their having been filed either. The Government’s argument is not that these submissions are prescribed by law so that the applicant should have known that they were to be filed; their argument seems to be that the submissions - the so-called “croquis” (see paragraph 34 above) - were filed according to a standing practice which enables the Senior Public Prosecutor to file such a croquis in such cases as he deems appropriate. They suggest that this practice must have been known to the applicant’s lawyer who, accordingly, could have enquired whether in the applicant’s case a croquis had been filed. If so, he could have requested leave to inspect the file under section 82 of the Code of Criminal Procedure and thus could have commented on it. Section 82, as it is formulated, however, does not seem to grant an unconditional right to inspect the complete file but only the possibility to ask for leave to do so, and the parties differ as to whether, with regard to the croquis, such leave would have been granted at the relevant time. The Commission left that question unsettled and so will the Court.

The Court notes that the croquis apparently has considerable importance and that the alleged practice requires vigilance and efforts on the part of the defence; against this background, the Court is not satisfied that this practice sufficiently ensures that appellants in whose cases the Senior Public Prosecutor has filed a croquis on which they should comment are aware of such filing.

68. The Commission established that, after the Court of Appeal’s judgment of 23 April 1985 had been quashed by the Supreme Court on 28 January 1987 (see paragraphs 33-34 above), no new submissions were filed by the Senior Public Prosecutor. It considered therefore that, in so far as the Court of Appeal’s judgment “reproduced almost literally” the text of the observations in question, the applicant had had the opportunity to deal with the arguments contained therein in the second set of proceedings.

The Court does not share this view. An indirect and purely hypothetical possibility for an accused to comment on prosecution arguments included in the text of a judgment can scarcely be regarded as a proper substitute for the right to examine and reply directly to submissions made by the prosecution.

Furthermore, the Supreme Court did not remedy this situation by quashing the first judgment since its decision was based on a ground entirely unrelated to the matter in issue.

69. The Court therefore concludes that, in the appeal proceedings concerning the defamation case, there was a violation of Article 6 para. 1 (art. 6-1) of the Convention.”

“49. As to the Government’s plea that the Attorney-General’s observations merely requested that the case be dealt with under Article 285d of the Code of Criminal Procedure without giving any reasons (see paragraph 14 above), it is perhaps worth pointing out that in the Lobo Machado case cited above, the Court, in the less stringent context of a social dispute, did not consider it admissible for the Attorney-General’s representative to submit a final statement which briefly requested that the appeal court’s decision should be upheld. In the present criminal appeal, the submission of the observations allowed the Attorney-General to take up a clear position as to the applicant’s appeal, a position which was not communicated to the defence and to which the defence could not reply. In any event, as the Commission rightly pointed out, the principle of the equality of arms does not depend on further, quantifiable unfairness flowing from a procedural inequality. It is a matter for the defence to assess whether a submission deserves a reaction. It is therefore unfair for the prosecution to make submissions to a court without the knowledge of the defence.

50. In view of the above, the Court concludes that the principle of the equality of arms has not been respected. There has, therefore, been a violation of Article 6 para. 1 (art. 6-1) on account of the Attorney-General’s submission of observations to the Supreme Court without the applicant’s knowledge.”

“24. However, the concept of fair trial also implies in principle the right for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed (see the Lobo Machado v. Portugal and Vermeulen v. Belgium judgments of 20 February 1996, Reports 1996-I, p. 206, para. 31, and p. 234, para. 33, respectively).”

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“26. The Court notes that even though the observations in issue ran to only one page they nevertheless constituted a reasoned opinion on the merits of the appeal, and explicitly called for it to be dismissed. As the Delegate of the Commission observed, they were therefore manifestly aimed at influencing the Federal Court’s decision.

27. In that connection, the effect they actually had on the decision is of little consequence. In any event, as the observations came from an independent tribunal which, furthermore, had a thorough knowledge of the file, having previously considered the merits of the case, it is unlikely that the Federal Court would have paid them no heed. It was therefore all the more needful to give the applicant an opportunity to comment on them if he wished to do so.

28. It is also of little consequence that the case concerned civil litigation, where the national authorities, as the Government rightly pointed out, enjoy greater latitude than in the criminal sphere (see the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, para. 32, and the Levages Prestations Services v. France judgment of 23 October 1996, Reports 1996-V, p. 1544, para. 46). According to the above-mentioned Lobo Machado and Vermeulen judgments, on this point the requirements derived from the right to adversarial proceedings are the same in both civil and criminal cases (p. 206, para. 31, and p. 234, para. 33, respectively).

29. Nor is the position altered when, in the opinion of the courts concerned, the observations do not present any fact or argument which has not already appeared in the impugned decision. Only the parties to a dispute may properly decide whether this is the case; it is for them to say whether or not a document calls for their comments. What is particularly at stake here is litigants’ confidence in the workings of justice, which is based on, inter alia, the knowledge that they have had the opportunity to express their views on every document in the file.

30. No doubt the filing of observations like those in issue in the present case is calculated to save time and expedite the proceedings. As its case-law bears out, the Court attaches great importance to that objective, which does not, however, justify disregarding such a fundamental principle as the right to adversarial proceedings. In fact, Article 6 para. 1 (art. 6-1) is intended above all to secure the interests of the parties and those of the proper administration of justice (see, mutatis mutandis, the Acquaviva v. France judgment of 21 November 1995, Series A no. 333-A, p. 17, para. 66).

31. In the present case respect for the right to a fair trial, guaranteed by Article 6 para. 1 of the Convention (art. 6-1), required that Mr Niderest-Huber be informed that the Cantonal Court had sent observations and that he be given the opportunity to comment on them.

Moreover, according to the Government’s explanations at the hearing before the Court, that is indeed the normal practice of the Federal Court. It was not followed in this case.

32. There has accordingly been a breach of Article 6 para. 1 (art. 6-1).”

“1. For a number of years the Criminal Appeal Office has prepared summaries of cases coming before the Court of Appeal (Criminal Division) in order to assist the court in its work. These summaries are entirely objective and do not contain any form of advice as to how the court should deal with a case, or any views on the merits of a case. The facts of the case, as outlined in the summary, are drawn entirely from material already available to counsel in the case.

2. The summaries as they are prepared at present are not suitable for disclosure in their entirety to all counsel in a case. This is because they include material which is specific to individual appellants and confidential as between that appellant and the court, which co-appellants;, or counsel for the Crown, are not entitled to know. However, all summaries written after 1 October 1992 will be in a form which can be disclosed to all parties and, subject to any direction to the contrary in a particular case, will be provided by the Criminal Appeal Office to all counsel in the case.”

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“6. The summary is provided only so that counsel knows what material the court has before it. The contents of the summary are a matter for the professional judgment of the summary writer but counsel wishing to suggest significant alterations should write to the Registrar of Criminal Appeals. If the Registrar does not agree with the .suggested changes the letter will be put before the court with the summary.”-------------------------------------------------------

“An order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.”

“If the court is so satisfied then it has to consider whether, in the exercise of its discretion, a Civil Proceedings Order, in this case, should be made and, if that becomes material, whether indefinitely or otherwise.”

”The matter which to my mind, is relevant in this case is that where the power to be exercised involves a charge made against the person who is dismissed, by that I mean a charge of misconduct, the principles of natural justice have to be observed before the power is exercised.”-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

“No one, I think, disputes that three features of natural justice stand out––(1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges. The first does not arise in the case before your Lordships, but the two last most certainly do, and the proceedings before the watch committee, therefore, in my opinion, cannot be allowed to stand.”--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------“I cannot see that the general words of the statute are, in the light of the authorities as I understand them, wide enough to cover a case of this character where allegations of misconduct are involved resulting in the loss of an office and an element of punishment for offences committed. There is imposed a clog on the discretion in that it cannot be exercised arbitrarily without regard to natural justice.”--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

“I must retreat to the last refuge of one confronted with as difficult a problem as this, namely, that each case depends on its own facts, and that here the deprivation of a pension without a hearing is on the face of it a denial of justice which cannot be justified upon the language of the section under consideration.”

-------------------------------------------------------------------------------“The Chief Constable should have directed his mind to the criteria laid down in the regulation in accordance with the appropriate principles of natural justice. He did not do so, and I think it only too likely that this was precisely the belief that his discretion was absolute which led to the cavalier treatment to which, in any event, the respondent was subjected.

To this treatment I now come. Once it is established as was conceded here, that the office held by the chief constable was of the third class enumerated by Lord Reid in Ridge v Baldwin [1963] 2 All ER 66 at 72. [1964] AC 40 at 66, it becomes clear, quoting Lord Reid, that there is ‘an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation’.”

“So far as section 51 is concerned, there is no power in that section or elsewhere in the Act for the court to consider whether an order made under that section should be discharged.”-------------------------------------------------------------------------------------------------------------------------------------------------------------------------

“So far as section 42 of the 1981 Act is concerned (which, as I say, is not directly relevant to Miss Rohrberg’s case, since her order was made under the 1925 Act) it is in all material respects save one the same as the corresponding section under the 1925 Act. That exception is in subsection (2), which provides that an order under section (1) may provide that it is to cease to have effect at the end of the specified period, but otherwise remains in force indefinitely. If there is any assistance to be obtained from the 1981 Act it is to suggest that the scheme of this particular statutory provision is that unless the order itself contains some limitation it is indefinite in duration.

Accordingly, I would hold, as did the Divisional Court, that neither the High Court, nor the Divisional Court as part of it, has any jurisdiction to entertain an application to discharge an order, made either under section 51 of the 1925 Act or under section 42 of the 1981 Act, although there is undoubtedly a power in the Court of Appeal to entertain an appeal limited to the issue of whether the order should have been made originally.”

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“(3) A person against whom an order under subsection (1) has been made may apply to the court for rescission of the order”-----------------------------------------------------------------------------------

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“(3) The Court may from time to time rescind or vary any order made by it under subsection (1) or (2).”

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“I would for my part endorse the division of the potential 15-year disqualification period into three brackets,”--------------------“(i) the top bracket of disqualification for periods over 10 years should be reserved for particularly serious cases.”-------------------------------------------------------------------------------------------------“(ii) The minimum bracket of two to five years’ disqualification should be applies where, though disqualification is mandatory, the case is relatively, not very serious. (iii) The middle bracket of disqualification for from six to 10 years should apply for serious cases which do not merit the top bracket.”

“There are now three final matters to be decided. Should we in the exercise of our discretion make a civil proceedings order? Should any order be limited or unlimited in time?”-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

“Next, the length of the order. The power of the Court to make an order limited in time was first introduced in 1981, and we were told by Mr Jay that until now it has never been exercised. He expressed concern that if a limited order was made a vexatious litigant might seek to revive old causes of grievance by assertions that his or cause of action had been concealed by equitable fraud so as to prevent time running under the Limitation Act.

It appears to us that this in itself is no good reason for not making a time-limited order if we considered that the justice of the case demanded it. If litigation we regard as vexatious was revived after a time-limited order expired, the Attorney-General could always come back to this court for appropriate relief, and it may be desirable when the wording of the statute is next under review to make it completely clear that the court could grant such relief notwithstanding that the once vexatious litigant had not had time to satisfy the criteria in Section 42(1) all over again since his or discharge from a time-limited order. In our judgment, given that the power to make a time-limited order exists, we ought to exercise it in this case.”----------------------------------------------------------------------------------------------------------------------“Mr Price is now 53. Provided that he is prevented from embarking on civil proceedings (or making applications in civil proceedings) for 15 years, we consider that an appropriate balance would be struck between the need to bring the present nuisance very firmly to an end and the desirability of removing the restriction from Mr Price at a time when it is no longer likely to serve any very useful purpose. We therefore make a civil proceedings order against him for 15 years.”

“However, it does appear to me that there is some merit in the submissions advanced on Mr Yeo’s behalf by the Citizens Advice Bureau. It is true to say that this case is not as bad as many that one sees and it is true also that Mr Yeo has not shown any propensity to direct actions against a great variety of people in an indiscriminate manner. I am satisfied, as I have said, that the trustees must be protected from my further actions arising out of this will, but I am not persuaded that it is necessary to impose an order which will be of indefinite duration.

We were helpfully referred by Mr Jay to the case of the Attorney-General v Price [1997] COD 250. In that case the court drew attention to the power of the court to make an order for a limited time period. That power came into existence in 1981 under the Supreme Court Act, but had, until 1997, not apparently been exercised. I have considered what period of time would be appropriate to give the trustees, and any other potential defendant who might be affected by an action arising out of Mr Ellis’s will, the necessary protection. I consider that any relevant limitation period will have expired and a suitable interval thereafter will also have passed if an order for 10 years from today were to be made. I consider that such an order would be appropriate. It would give the trustees the protection which they plainly need. It would cause Mr Yeo to cease wasting public resources and give him an opportunity to recover from the anger which he has plainly felt in the past few years as a result of the events of 1994. It would have the advantage of allowing him in the later years of his life freedom of access to the courts. I am conscious of how serious a matter it is to deprive a citizen of the right of access to the court and, in my judgment, an order for a period of 10 years would provide an appropriate balance between the interests of the trustees and the public, on the one hand, and Mr Yeo on the other. I would propose a civil proceedings order for a term of 10 years.

LORD JUSTICE ROSE: I agree. Accordingly, we shall make a civil proceedings order under section 42 of the Supreme Court Act 1981 for a period of 10 years from today.”

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“I would make the Civil Proceedings Order that is sought here and I would make it without limit of time. There is no rational basis that I can perceive upon which a time limited order ought properly to be made.”

--------------------------------------------------------------------------------------------------------------------------------------------------------------“I see no basis upon which it would be right to make an order limited in time and I have no doubt but that this respondent would continue to litigate in effect indefinitely if he were allowed to do so. For all the reasons I have given, I would make a Civil Proceedings Order in this case not limited in time.”

“I have considered whether there exists any basis for making an order limited in time, under s.42(2). As a matter of history such orders have been made very rarely, and by reason of the presence of some special feature or features in the case. But everything in this case points to the need for a civil proceedings order unlimited in time. That is the order I would make.”

“Nevertheless I cannot forget the respondent’s conduct until now and in particular his continuing and remorseless determination to continue to seek redress against the Wolf brothers and those connected with his bankruptcy. This case is uniquely strong in the light of the respondent’s burning determination to continue with these claims in the face of many defeats in the courts and see no reason why this will not continue. As Laws LJ has just said this is a very extreme instance of extreme litigation and so I believe that this is precisely the type of case in which there should not be an order of limited duration. In those circumstances I believe that the civil proceedings order should be of permanent duration.”

-------------------------------------------------------------------------------‘The guiding principles were recently restated by the European Court of Human Rights in paragraph 59 of its judgment in Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 in the following terms:

-------------------------------------------------------------------------------“It is also clear that art 10 may be used when the court is contemplating how a discretion is to be exercised. Thus in A-G v Guardian Newspapers Ltd [1987] 3 All ER 316 at 355, [1987] 1 WLR 1248 at 1296 Lord Templeman referred to art 10 when considering whether the interference with the freedom of expression which the grant of an interlocutory injunction would entail was ‘necessary in a democratic society’ for any of the purposes specified in para (2) of art 10.”

-------------------------------------------------------------------------------“Nonetheless it is right that this court should bear in mind that an order under section 42 of the Supreme Court Act 1981 is a formidable one which should not be taken lightly by any court, because it restricts a particular litigant in a way in which the remainder of the public are not restricted. Therefore to that extend it impinges upon his rights as an individual and reflects upon him as a citizen.”

“As is well-known, the purpose of an order under section 42 is to protect persons who are being plagued by vexatious litigants, whether in civil or in criminal proceedings, but the court of course will always be exceedingly careful to be satisfied that the basis for making an order is made out, because it is a strong interference with a citizen’s right to access to the court.”

-------------------------------------------------------------------------------“It goes without saying that the jurisdiction is important but also draconian and has to be exercised with great care.”-----------------

“I remind myself, though it is of course elementary, not least on the eve of our incorporation of the European Convention on Human Rights, that an order barring a citizen from the door of the Queen’s courts is a very draconian measure.”--------------------------------------------------------------------------------------------------

“I accept, of course, that the imposition of an order under section 42 is a serious infringement of a citizen’s right of access to the courts;”---------------------------------------------------------------------

Every person holding the nationality of a Member State shall be a citizen of the Union.

‘The only matter that might have influenced us not to make a civil proceedings order was the consideration that Mr Price, like the litigant in Re Vernazza [1959] 1 WLR 622 is a man with a single all-pervading grievance and a civil proceedings order would have the effect of obliging him to pay a £50 premium to the State (being the current fee for a High Court application in the Queen’s Bench and Chancery Divisions) whenever he sought to issue civil proceedings of any kind or to make an application in any such proceedings. There is, however, no evidence that he has ever been involved in any civil proceedings before the Novell dispute blew up, nor any evidence that he wishes or intends to get himself involved in any non-Novell proceedings in the future, so that the weight we should give to this factor in the exercise of our discretion is more limited than it otherwise might have been.

We enquired of Mr Jay whether the High Court had in its inherent jurisdiction made orders against vexatious litigants before the creation of the broadbrush statutory remedy in the Vexatious Proceedings Act 1896. After taking instructions overnight he told us that the Law Officers’ Department knew of five, or possibly six cases between 1888 and 1896 in which the court had made a blanket order against a vexatious litigant of the type that was given a codified form in the 1896 Act. Since the remedy was now codified and the statutory remedy could not be limited so as to apply to legal proceedings against a particular defendant only (see Re Hutchison [1929] WN 102) he requested us not to have recourse to the inherent jurisdiction of the court to make an individualised order limited to “Novell litigation,” and if Parliament, despite the influence of Article 6 of the European Convention on Human Rights, has not given the High Court a more flexible range of remedies against vexatious litigants it does not appear to us to be appropriate for this Court, on the basis of limited argument and with evidence before it of the Parliamentary preference, to embark on such a course, particularly if the Attorney-General does not invite us to consider it. We saw evidence, by chance, in a case we heard the day after the hearing in the present case finished, of the willingness of the Attorney-General to invoke the inherent jurisdiction of the court in a case where the remedies provided by Section 42 of the 1981 Act were perceived to be insufficient. On 22^nd January 1997, in A-G v Landau, this court granted a permanent injunction on the application of the Attorney-General to restrain a vexatious litigant from issuing statutory demands as a prelude to bankruptcy proceedings.

We also took into account the possible administrative and other inconvenience involved in making an order limited to a single category of vexatious litigation. We considered, for example, vexatious arguments as to whether any particular litigation or application was caught or not caught by the terms of a limited order. Taking all these factors into consideration we considered it just, in the exercise of our discretion, to make a statutory order in the usual way.’

-------------------------------------------------------------------------------“4 I should make it clear that we have not decided that the course of the Respondent’s litigation against his family would justify an order under section 42, having by no means heard full argument. But it is right to say that the voluminous papers, which of course we have studied with some care, disclose a powerful prima facie case if that litigation is looked at in isolation. It is clear that the court has no power to make a split or partial order under section 42 prohibiting the Respondent from litigating only against named parties: Hutchinson [1929] WN 102. That case was decided under an earlier statute, but its effect, as Mr Jay accepts, is unaltered by the somewhat different terms of the current section.”

“must be adequately accessible : the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct : he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”