IN THE HIGH COURT OF JUSTICE CO/4380/98

Royal Courts of Justice

The Strand

London

Wednesday 16 February 2000

B e f o r e:

(Lord Bingham of Cornhill)

and

B E T W E E N:

- v -

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Smith Bernal, 180 Fleet Street, London EC4

Telephone No: 071-421 4040

(Official Shorthand Writers to the Court)

MR ROBIN TAM (instructed by the Treasury Solicitor) appeared on behalf of THE APPLICANT

THE RESPONDENT appeared in person

J U D G M E N T

(As Approved by the Court)

Wednesday 16 February 2000

1. THE LORD CHIEF JUSTICE: 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.

3. The respondent, Mr Barker, lived from 1988 until August 1993 with a partner, Miss Jane Boyce. They had two children, a girl, “F”, who was born on 4 April 1990 and who will soon be 10, and a boy, “T”, who was born on 27 February 1992 and who will even sooner be 8.

4. The facts relating to Mr Barker and his partner and the children were set out at very considerable length by His Honour Judge Ansell in a judgment delivered on 3 November 1997. It is unnecessary and undesirable for present purposes to give more than the briefest summary.

5. In August 1993 Jane Boyce left Mr Barker with the children. By that stage their relationship had to a large extent broken down. Following the separation there were difficulties over contact and at the end of 1993 the children went to live with Mr Barker. There were continuing difficulties over contact and the mother felt that in all the circumstances it was better if she stopped seeing the children, although her own mother continued to do so. There was evidence that Mr Barker behaved in an aggressive, disruptive and abusive way and he found himself involved in altercations with the staff, the governors and some parents at the first school which the two children attended. He had a quarrel with the headmistress. He was banned from the school. He broke the ban and was warned by the police. In October 1996, following a further altercation, the children were withdrawn from that school and did not attend school again until the end of January 1997. At the new school further difficulties arose and there were real anxieties about various aspects of Mr Barker’s upbringing of the children.

6. On 10 February 1997 His Honour Judge Connor made an emergency protection order in relation to the children who in August 1997 went to live with their mother. There were continuing difficulties in the arrangements for contact. Such was the brief background when on 3 November 1997 His Honour Judge Ansell sitting in the Watford County Court made a residence order in favour of the mother, ordered contact with the father, and made a prohibited steps order. We have his detailed judgment in the bundle, and note his conclusions at page 245 of that bundle, and his order at page 248, neither of which it is necessary to recite. It is, however, relevant to note that there was evidence, as the judge found, that Mr Barker was suffering from mental illness, and that may explain much of what took place.

7. On 15 December 1997, six weeks after the judge’s order and judgment in the family proceedings, Mr Barker issued eight writs. Seven of those related directly or indirectly to the family proceedings; one concerned a negligence claim which had been made by Mr Barker against solicitors and which had been settled on terms which Mr Barker had come to regard as disadvantageous. The writs were issued against the chairman of the governors of the children’s first school, against the solicitor who had advised Mr Barker in the family proceedings, against an officer of the Hertfordshire County Council Social Services Department, against the solicitor who had acted for Mr Barker in the successful negligence claim, against another officer of the Hertfordshire County Council Social Services Department, against the head teacher of the children’s second school, against a third officer of the Hertfordshire County Council Social Services Department, and against yet a fourth officer of that department.

8. It is unnecessary for present purposes to go in detail into the minutiae of the claims made against each of these defendants, but it is relevant to give some indication of the tenor of these claims or some of them and the manner in which they were drafted. I take as an example the claim made against a Mr Kellett, an officer of the Hertfordshire County Council Social Services Department. The endorsement of the writ against him claimed negligence/damages and read:

9. The statement of claim, which was shorter than in many other actions, again bore the heading “Tampering with Evidence” and read:

10. The other writs were of the same character.

11. The issue of those proceedings was only a beginning. Two days later, on 17 December 1997, Mr Barker issued eight more writs. The defendants in this case were the headmistress of the children’s first school, His Honour Judge Ansell, the solicitor who had advised Mr Barker on his prospects of an action against the solicitor who had handled the negligence claim, the solicitor who had advised Mr Barker on the merits of a defamation claim against the headmistress of the children’s first school, the solicitor who represented Mr Barker in the family proceedings, the Hertfordshire County Council County Secretary’s Department, the Hertfordshire County Council Social Services Department, and the solicitor who had represented the children at the family hearing. Again a sample of the nature of these proceedings may be given. The endorsement of the writ against Judge Ansell was headed "Negligence/Damages" and read:

12. Mr Barker served documents purporting to be statements of claim in most of these actions, and some defences were served. In one instance an error on the part of the court led to the entry of a judgment in default in favour of Mr Barker, which was set aside by the Senior Master when the true facts came to light.

13. On 30 January, 2 February and 11 February 1998 summonses to strike out were issued in six of the actions already mentioned. On 17 February 1998 summonses to strike out were issued by the court of its own motion in nine actions. Two days later, on 19 February 1998, Mr Barker issued summonses in the St Albans County Court against the Senior Queen’s Bench Master and the head clerk of the action department of the Queen’s Bench central office, complaining of the setting aside and of the default judgment. These summonses were transferred to the High Court. On 20 February 1998 the Treasury Solicitor issued a summons to strike out the claim against Judge Ansell. On 23 February 1998 Mr Barker issued summonses in the St Albans County Court against the solicitor representing the various solicitors whom he had sued. This summons also was transferred to the High Court and very shortly thereafter a summons was issued to strike it out.

14. On 27 February 1998 the summonses to strike out came before Alliott J who made an order striking out 19 actions, including two by the court of its own motion. We have a copy of the judgment which he delivered on that occasion. He alluded to the history of the matter and the judgment of His Honour Judge Ansell. He explained the very unusual course which matters had followed and he cited the well-known terms of Order 18, rule 19 of the Rules of the Supreme Court. He was in no doubt that all 19 actions should be struck out.

15. That decision proved to be the spur to further action by Mr Barker who on 18 March 1998 issued a summons in the St Albans County Court against the child psychiatrist who had given expert evidence at the family hearing. That was struck out on 1 May 1998.

16. On 21 October 1998 the Solicitor General authorised this application and a notice of motion was issued in November. Mr Barker sought leave to appeal against the decision of Judge Ansell, but that was refused by the Court of Appeal. He also sought leave to appeal against the order of Alliott J, and that too was refused.

17. On behalf of the Attorney General Mr Robin Tam, in the course of very clear and well prepared submissions, contends that the conditions specified in section 42(1)(a) of the Supreme Court Act are met and that it is appropriate for the court to exercise its discretion to make an order. He submits that the actions referred to do not disclose any reasonable cause of action and each pleading has been wholly defective. He submits that most of these actions have represented attempts to re-litigate decisions adverse to Mr Barker and that he has refused to accept judicial decisions as evidenced by his attempts to sue Judge Ansell and the Senior Queen’s Bench Master. He points out that the remedies sought by Mr Barker in his various actions are frequently not such as the court could award, and draws attention to the fact that Mr Barker has issued a large number of separate actions against individual defendants when he could either have sued their employer or have joined them in a single action, drawing attention to this aspect as an indication of the vexatious character of the litigation. Mr Tam also points out that Mr Barker is on income support and as a result is in no position to pay the costs awarded against him and is furthermore excused from paying the ordinary fees exacted on issue of proceedings. He reminds us that on one occasion Mr Barker was heard to indicate that no one would get a penny out of him, and Mr Tam also suggests that Mr Barker has shown an intention to continue in his course of litigious conduct, particular attention being drawn to an occasion on 27 February 1998 when Mr Barker was heard to threaten action for defamation. It is said that in the course of the hearing before Alliott J he said that if the judge decided against him he would sue that judge as well as Judge Ansell.

18. Mr Barker today has appeared before us in person and told us, which I readily accept, that he was very deeply upset at losing his children under the order of the court. He further tells us, and again I would for my part accept, that he was at the time seriously ill. He points out, however, that his resort to litigation was very short- lived and was now two years ago. The burden of all these actions, he says, had a very severe effect on his mental health and resulted in his spending three months in various hospitals. He is now restored to health. He is seeing his children on a regular basis and looking forward to increased contact. He wants to put the past behind him and says that he has no intention of further resort to litigation. He has indeed offered his word to the court that he will not seek to repeat his conduct of two years ago in issuing writs broadcast.

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. 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.

25. MR JUSTICE KLEVAN: I agree.

26. MR TAM: My Lord, may I just have a moment?

27. THE LORD CHIEF JUSTICE: Yes.

28. MR TAM: My Lord, we obviously have no applications arising. The only matter that might arise -- and again I mention this out of fairness because Mr Barker is not represented -- is costs that might arise. If we had succeeded your Lordships know that, as a matter of tradition if nothing else, no order for costs is sought by the Attorney General. I do not know whether Mr Barker makes any application against us, but I mention that out of completeness.

29. THE LORD CHIEF JUSTICE: Well, Mr Barker, Mr Tam is asking whether you are asking for an order for costs against the Attorney General?

30. THE RESPONDENT: No, my Lord.

31. THE LORD CHIEF JUSTICE: You appreciate that you could if you wanted to? It does not mean that we would make an order, but you could ask for it.

32. THE RESPONDENT: I know and I don’t ask for one.

33. THE LORD CHIEF JUSTICE: Mr Barker, you understand the effect of that judgment, do you? We are not making the order that the Attorney General is asking us to make. We are accepting your word.

34. THE RESPONDENT: Thank you, my Lord.

35. THE LORD CHIEF JUSTICE: But you will not let us down, will you?

36. THE RESPONDENT: No.

37. THE LORD CHIEF JUSTICE: Good. Thank you very much. We did say in the judgment that if you did, the Attorney General would come back and he would be almost certain to obtain an order. Thank you very much.