Tuesday, 9th November 1999

JUDGMENT

THE VICE CHANCELLOR: Lord Justice Robert Walker will give the first judgment.

LORD JUSTICE ROBERT WALKER: Mr Kenneth Johnson has, for more than 13 years, been subject to an order made under section 42 of the Supreme Court Act 1981 ("the 1981 Act"), relating to the restriction of vexatious legal proceedings. That section reproduces earlier legislation going back to the Vexatious Actions Act 1896. Its history and purpose have been described in the judgment of this court in Ebert v Yenvil [1999] 3 WLR 670 at pages 673-4. The most material parts of section 42, as amended by the Prosecution of Offences Act 1985 ("the 1985 Act"), are as follows:

Subsection (2) reads:

Before its amendment by the 1985 Act, section 42 had no subsection (1A) and no definitions of different types of order ended,

This amendment came into force on 1st April 1986. Section 24(7) of the 1985 Act provided that an order under section 42 of the 1981 Act, made before but still operative at that date, should be treated as a Civil proceedings order."

On 17^th January 1986, about three months before the amendment came into force, Kennedy J, on the application of the Attorney-General, made against Mr Johnson what was plainly intended to be a section 42 order in the old standard form. However, the order was carelessly drawn up as Mr Johnson was named in the body of the order, although not in the title, as Kenneth Jones. Although indent (i) of the order closely followed the wording of paragraph (i) of the unamended section 42(1), indent (ii) ran together parts and omitted other parts of the wording of paragraphs (ii) and (iii) of section 42(1), and there was no indent (iii) in the order. In short, it contained a serious typographical error.

A few days later, the order of Kennedy J was amended under the slip rule by substituting “Johnson” for “Jones”, but no other correction was made. On the face of the amended order, Mr Johnson is prohibited for an indefinite period from:

It is obvious that an error has been made and reference to section 42(1) in its original form makes clear what the error was.

Mr Johnson has a longstanding claim against Mr David Valks. Mr Valks is, or was, a farmer in County Durham who was himself engaged in heavy litigation, involving his father and brothers and a family farming company, as to whether valuable mineral deposits under farmland had been concealed or misrepresented when there was a partition of family assets. Mr Johnson is a mineral valuer and he was retained as an expert witness on behalf of Mr Valks. Mr Johnson carried out a mineral valuation and produced a written report dated 5th August 1995 valuing the minerals as a little over £6 million. He claims to have become entitled to at least £61,596 of which only a small part has been paid. I need not go into the history of that dispute, except to say that it was both complex and bitter. The sums at stake were substantial and it was eventually settled.

On 18^th November 1996 Moses J, sitting at Newcastle-on-Tyne, made an order on an application by Mr Johnson, acting in person and not on notice, that Mr Johnson:

Armed with this information, on 17^th December 1996 Mr Johnson issued a writ against Mr Valks in the Queen’s Bench Division, Newcastle-on-Tyne District Registry. On 18 November 1997 the proceedings were transferred to Newcastle-on-Tyne County Court.

After interlocutory activity, about which it is best to say as little as possible, the trial of the action began on 4^th February 1998 at Newcastle before Judge Harkins. Mr Johnson appeared in person. Mr Valks was represented by solicitors and counsel. In his written submissions entitled ("referral report"), Mr Johnson has given a vivid account of the first morning of the hearing. That is one side’s account of the matter. Again, it is best to say as little as possible about it at this stage.

Before the short adjournment on the first day, the judge had acceded to the submission made by counsel for Mr Valks that the action should be struck out because Mr Johnson’s approach to discovery raised what the judge called "a serious question mark", and there was a real risk that a fair trial was no longer possible. The judge dismissed the action with costs and told Mr Johnson that he did not need leave to appeal against what was a final order.

Mr Johnson wishes to appeal to this court against the dismissal of his action. He gave notice of appeal on 4^th March 1998 and his appeal was set down for 1st January 1999, the date when the new general requirement for permission to appeal came into force. However, the question that has been raised is whether Mr Johnson requires further permission from the High Court under section 42 of the 1981 Act. That is the only issue of principle before this court.

That issue raises three separate points.

(1) What is the effect of the order of Kennedy J made on 17^th January 1986 and, in particular, does it take effect as a civil proceedings order in normal form?

(2) Does a civil proceedings order in normal form require a vexatious litigant to obtain permission for an appeal to the Court of Appeal where permission under section 42 has been given for the institution of proceedings at first instance, and where permission for an appeal to the Court of Appeal would not normally be required?

(3) Has permission for an appeal already been given, expressly or impliedly, by the order made by Moses J on 18^th November 1996?

These questions raise issues of some general importance, not least because of the expected coming into force of the Human Rights Act 1998.

The first point creates no real difficulty. Whatever difficulty might have arisen, apart from the 1985 Act, it is clear that the order of 17^th January 1986 was an order under section 42 made before, and in force at, the commencement of the amendment made by the 1985 Act. Therefore, it now has effect as a normal civil proceedings order. There is no indication that any misunderstanding, still less injustice, has arisen from the typographical error.

As to the second point, there are several reported decisions which touch on the scope and effect of a civil proceedings order. Mr Johnson, who is an experienced and resourceful litigant in person, has drawn our attention to three decisions of this court, apart from Ebert to which I have already referred, relating to the amended section 42, and also to the two decisions of the European Commission and the European Court of Human Rights.

The three decisions of this court are Attorney-General v Jones [1990] 1 WLR 859; Henry Garratt & Co v Ewing [1191] 1 WLR 1356; and Jones v Van Colina [1996] 1 WLR 1580. Only the second of these calls for detailed mention, although I note that Jones v Van Colina has been overtaken by the reform of the civil justice system (see paragraph 7.9 of the practice direction supplementing Part 3.4 of the Civil Procedure Rules).

In Henry Garratt & Co v Ewing a civil proceedings order had been made in December 1989 against Mr Ewing. He was sued in the county court and in April 1991 judgment was entered against him. The issue was whether Mr Ewing needed permission under section 42 for an appeal to this court. Lord Donaldson, MR, with whom Russell and Leggatt LJJ agreed, noted at page 1538 that the wording of the civil proceedings order against Mr Ewing closely followed the wording of section 42(1A) and had to be construed consistently with it. The Master of the Rolls identified the real issue as whether the proceedings below should be regarded as having been concluded by the judgment in the county court, so that an appeal was to be regarded as the institution of new proceedings. He referred to two decisions of the House of Lords, both concerned with the meaning of the expression "proceedings" in different statutes, but did not derive assistance from them.

The Master of the Rolls then referred to Attorney-General v Jones. In that case, this court had not considered section 42(1A) in detail and, in particular, had not considered whether an appeal to the Court of Appeal is "an application... in any civil proceedings instituted in any court" so as to come within paragraph (c) of the definition of civil proceedings order. But the Master of the Rolls continued at page 1361:

So even if Attorney-General v Jones is put on one side, a substantive appeal to the Court of Appeal is either the institution of proceedings within paragraph (a) of the definition in section 42(1A), or it is an application in existing proceedings within paragraph (c). That decision is binding on this court, and it is unnecessary to opt for one or other horn of the dilemma, although my clear preference would be for paragraph (a).

Whichever analysis is to be preferred, it seems to me unarguable that the order of Moses J, made on 18^th November 1996, gave permission for an appeal to the Court of Appeal. There is nothing on the face of the order to suggest that, in giving Mr Johnson permission to institute proceedings against Mr Valks, Moses J intended, before the first instance proceedings had even begun, to grant permission for an appeal on unknown grounds against a final order in unknown terms which might be made at the conclusion of the first instance proceedings.

It is not clear whether section 24(7) of the 1985 Act was drawn to his attention or whether he took the order of the 17^th January 1986, with its awkward references to applications, at face value. It is no doubt arguable that if Moses J did address his mind to this point, he can hardly have intended that every single interlocutory application made by Mr Johnson in the county court proceedings (for instance, for permission to amend his pleadings) should have to be solemnly sanctioned in advance by a High Court judge. But wherever the line is to be drawn between routine and extraordinary applications, a substantive appeal to the Court of Appeal must be on the far side of it. The order of Moses J did not contemplate, and did not give permission for, an appeal to this court.

I conclude, therefore, that Mr Johnson does need the permission of the High Court before proceeding with this appeal. Strictly speaking, it should not have been set down without such permission.

That leads to a final curiosity in this matter. Under RSC Order 59 rule 10, as incorporated into the Civil Procedure Rules, the Court of Appeal has, in relation to an appeal, all the powers of the court below. That provision is sanctioned by section 15 of the Supreme Court Act 1981. In this case, however, the court below was not the High Court but the county court. It appears, therefore, that, paradoxical though it may be, the Court of Appeal has no power to grant the requisite leave to Mr Johnson. Fortunately, however, my Lord, the Vice Chancellor, is not subject to any such inhibition on his powers and is in a position to deal with the necessary application for leave.

LORD JUSTICE SWINTON THOMAS: I agree.

THE VICE CHANCELLOR: I agree too that, for the reasons given by Lord Justice Robert Walker, permission to institute an appeal is necessary for Mr Johnson’s appeal to proceed and I, like Lord Justice Robert Walker, prefer paragraph (a), the institution of proceedings paragraph, as covering the case.

That deals with the point that is before the Court of Appeal for decision. The result of our decision is that Mr Johnson needs the permission of the High Court to institute his appeal. I am a judge of the High Court and I am treating Mr Johnson as making now an application for that leave. In my view, permission should be given.

As a general principle, if a judge of the High Court, to whom application is made by a vexatious litigant for permission to institute proceedings, grants that permission, the leave that is granted franks the proceedings. Every judgment at first instance now requires permission to appeal for the case to be taken further. An application for that permission will receive the attention of either the first instance judge or, as it may be, the Court of Appeal. A vexatious appeal will not be permitted. So once the High Court has given permission for proceedings to be instituted, a further application to the High Court for permission to institute an appeal is, as it seems to me, superfluous.

As at present, however, there is no escape from the requirement that a further application for permission to appeal must be made to the High Court. I propose, the point having come to my attention via Mr Johnson’s proposed appeal, to raise the question with the Rules Committee and see whether we are able to amend the Rules so as to make it clear that no further application under section 42 of the 1981 Act is needed once permission to institute the proceedings has been granted.

As to the substance of Mr Johnson’s application for permission to appeal, his case was not dismissed on the merits. It was dismissed because of deficiencies in discovery and the judge’s belief that, as a consequence, there was a risk that a fair trial was not possible. It is not necessary, and would be inappropriate, for me to express a view about that, but it seems to me that it is not unarguable that the judge’s response was disproportionate.

Moreover, if Mr Johnson had not been a vexatious litigant, he would have been entitled to ask the Court of Appeal to express a view on the point. It seems to me that once he received from Moses J the authority to bring the proceedings, as he did, he ought to be under no further inhibition with regard to the proceedings than any other litigation. up to an appeal.

I, therefore, propose to grant him permission to appeal.

I am giving Mr Johnson permission to appeal under section 42 in the absence of Mr Valks or any of his representatives. It was held by the Court of Appeal in Jones v Vans Colina that once permission had been given on an occasion where the respondent was not present, the respondent had no locus standi subsequently to challenge and to seek to have that permission set aside. The practice direction supplementing the new rules to which Lord Justice Robert Walker referred in the course of his judgment has reversed that state of the affairs. It would be open to the respondent, if the respondent thought fit and was so advised, to apply to the High Court (and in the circumstances it would probably be an application to me) to set aside the permission to institute proceedings in the Court of Appeal that I have just given to Mr Johnson. Mr Johnson may be unaware of the practice direction, as, indeed Mr Valks may too be unaware. If Mr Valks does make such an application, it will be at his own risk as to costs.

Order: Application allowed.