IN THE HIGH COURT OF JUSTICE CO 933/98

(DIVISIONAL COURT)

Royal Courts of Justice

Strand

London WC2

Wednesday, 5^th July 2000

B e f o r e:

and

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-v-

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(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-421 4040/0171-404 1400

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

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The Appellant did not appear and was not represented.

MR R JAY QC (instructed by The Treasury Solicitor) appeared on behalf of the Applicant.

J U D G M E N T

(As approved by the Court)

(Crown Copyright)

Wednesday, 5^th July 2000

1. LORD JUSTICE LAWS: This is an application by HM Attorney General for a civil proceedings order against the respondent, Mr Bishop, under section 42 of the Supreme Court Act 1981. Mr Bishop has not appeared this morning and I have, with my lady’s agreement, indicated to Mr Jay QC for the Attorney that we would nevertheless proceed to a hearing and judgment.

2. I ought at the outset to explain why we have taken that course. The Attorney’s application was first listed for hearing in this court before Schiemann LJ and Silber J on 23^rd February of this year. Unfortunately, the Attorney’s skeleton argument, prepared by Mr Jay, had only been supplied some two days earlier. In these cases which by necessity involve a considerable amount of detail and the rehearsing of much past litigation, a thorough and well-prepared skeleton argument from the Attorney is an even more vital document than skeletons are in an ordinary case. So It was, with respect, no surprise that on 23^rd February the court did not feel it right to proceed but adjourned the matter. They directed that Mr Jay prepare a fresh skeleton. Because of some mishap - I think in the Treasury Solicitor’s Office, but it matters not - while Mr Jay got on and did that, it was not immediately put in Mr Bishop’s hands. However, I am assured by Mr Jay that Mr Bishop would have received the fresh skeleton ordered by the Divisional Court on 1st June this year. But when Mr Jay reviewed the matter, no doubt in preparation for the hearing, he thought it right to update the skeleton that he had prepared. He did that and, of course, the revised document also fell to be served on Mr Bishop. Mr Jay tells me, and it goes without saying that I accept, that he posted it personally by first class post to what is certainly the respondent’s correct address on 21^st June.

3. In an affidavit sworn but two days ago on 3^rd July, the respondent asserts at paragraph 3(9) that he did not receive this further revised skeleton argument until 29^th June. He is not here, as I have said, and he has not been cross-examined; it would be wrong to make any findings about it, but one questions that assertion since the skeleton was posted first class post on 21^st June. At worst, Mr Bishop received the revised skeleton on 29^th June. The revisions were of no very great substance, and it is not possible to take the view that Mr Bishop would have been prejudiced by receipt of that document on 21^st or even 29^th June 2000, not least since he had had Mr Jay’s substantive fresh skeleton argument on 1st June and, of course, had had the earlier skeleton argument which cross referred to the vast bulk of the relevant material back in February.

4. In the same affidavit, Mr Bishop says this at paragraph 5(1):

5. I should read paragraph 5.2:

6. In all those circumstances it has seemed to us, as I have said, right to proceed to adjudicate upon the merits of the Attorney’s application and I now give my judgment upon it.

7. In addition to Mr Jay’s skeleton there is a schedule of the relevant litigation that is exhibited to the first affidavit of Mr Akiwumi of the Treasury Solicitor’s Department.

8. Section 42 of the Supreme Court Act 1981 provides, so far as is material:

9. Subsection (1A):

10. I go to subsection (2):

11. The structure, then, of this well-known provision is that we first have to decide whether the respondent has habitually and persistently acted as specified in section 42(1) and, if he has, we are to decide whether to exercise the discretion granted to us to make a civil proceedings order either limited in time or to remain in force indefinitely.

12. In 1993 this unhappy history began when the respondent, Mr Bishop, was sued by D.E. Braybrook, a firm of builders, for money claimed to be due under a building contact relating to works at his home at Boomerang Court, Mansfield Road, Baldock in Hertfordshire. These proceedings are named as Action 1 in the Schedule exhibited to Mr Akiwumi’s affidavit.

13. The respondent counterclaimed for damages for breach of contract. He engaged Henry Cooper Consultants to provide expert evidence. He also issued the proceedings identified as Action 8 in the Schedule. This was an action commenced on 9^th February 1995 in the Luton County Court, claiming £22,150 damages against the builders D.E. Braybrook.

14. Action 1 was transferred to the Official Referee on 8^th November 1993, Action 8 followed it on 13th June 1995 and the two were consolidated. On 12^th June 1995 D.E. Braybrook obtained judgment against the respondent for £11,328.89 and costs.

15. Despite an undertaking given on 13th October 1995 to His Honour Judge Havery QC to take no further steps in Action 1, on 10^th February 1998 the respondent issued a summons seeking to set aside what was referred to as the judge’s “conditional judgment”. On 17^th February 1998, Judge Havery’s clerk wrote to the respondent explaining that the judgment was final. The letter contains these sentences:

16. Action 2 in the Schedule was a claim in the Hitchin County Court, brought by the Leeds Permanent Building Society against the respondent and his wife, claiming possession of their home. Action 3 was a like action brought by Barclays Bank. In both actions possession orders were made, in the Barclays action on 6^th February 1995.

17. Action 4 was a claim instituted on 15^th December 1993 in the Hitchin County Court by the respondent and his wife against Barclays Bank. The available documentation is for some reason incomplete, but it seems to be clear that the respondent was seeking the return of various documents relating to the contract with D.E. Braybrook and also damages. Save for one document, the bank denied having received the documents referred to. Apparently, no steps have been taken in this action since 1994.

18. No reliance at all is placed by Mr Jay on Action 5 and I may pass it over. It is convenient just to make it clear at this stage that Mr Jay asserts, very plainly, that the principal focus of the Attorney General’s case is on Actions 6 and 7 and 9 to 14, together with certain bankruptcy proceedings to which I shall refer and, indeed, which form a major part of this sorry tale.

19. Action 6 was a claim by Henry Cooper Consultants who, as I have said, had provided expert assistance for the respondent for the purposes of Action 1. They sought judgment for their professional fees. Summary judgment was obtained on 6^th April 1995 in the sum of £8,000.80. That was followed by a statutory demand issued on 1st May 1995.

20. The respondent then made four unsuccessful attempts to set aside this judgment and/or the demand. They were as follows:

1. before District Judge Short on 23 May 1995;

2. before District Judge Richardson on 15^th June 1995;

3. before HH Judge Cooke on 14^th August 1995;

4. before HH Judge Cooke on 8^th September 1995.

21. Moreover, the respondent issued a Notice of Appeal to the Court of Appeal against Judge Cooke’s last order dismissing his application to set aside.

22. Mr Jay submits that all these steps taken by the respondent against the background of a perfectly regular judgment were vexatious.

23. Now I will refer to the bankruptcy proceedings brought against the respondent. On 27^th September 1995 District Judge Short made a bankruptcy order that was based on Cooper’s statutory demand. D.E. Braybrook were supporting creditors. The respondent had applied for a stay of the bankruptcy petition, pending his appeals against Judge Cooke’s orders. The District Judge dismissed the application for a stay. The respondent issued a Notice of Appeal against the District Judge’s bankruptcy order and applied for a stay of that order.

24. On 3^rd October 1995, Rimer J heard and dismissed the application for a stay. In giving judgment, he said this:

25. Then at the page 3, line 16:

26. Two day later on 5^th October 1995 the respondent applied, I understand without notice, before District Judge Hewetson-Brown for a stay pending the hearing of an application to annul the bankruptcy order. That was a fresh application which he had issued on 30^th September 1995. In ignorance of Rimer J’s order, about which the respondent remained silent before him, the learned district judge stayed the advertisement of the bankruptcy order. However on 16^th October 1995 the court rescinded that order of its own motion and stayed the application for an annulment pending the hearing of the respondent’s appeal against the bankruptcy order. That appeal was listed for 6^th November 1995. In fact I think it was on 9^th November 1995 that Mr Mann QC, sitting as a deputy judge of the Chancery Division, dismissed the appeal against the bankruptcy order.

27. On 15^th or 16^th May 1996 the respondent made a fresh application to annul the bankruptcy order. That was dismissed by HH Judge Levy QC on 23^rd October 1996.

28. The respondent made yet two more applications to set aside the bankruptcy order. These were dismissed on 21^st April 1998 when Mr Registrar Simmonds also made an order under the jurisdiction taking its name from the case of Grepe -v- Loam, prohibiting the respondent from making any further applications in the bankruptcy proceedings without first obtaining leave to do so. The respondent issued a Notice of Appeal.

29. On 30^th April 1998 he appeared without notice before Neuberger J who was given, clearly, an exiguous account of the history. The learned judge gave the respondent leave to apply to the Luton County Court to annul the bankruptcy order. That application was heard and dismissed by District Judge Hewetson-Brown on 16^th December 1998. The respondent appealed. Neuberger J dismissed his appeal on 28^th July 1999. On that occasion the learned judge gave a very detailed judgment in which he held that there was no basis whatever for any challenge to the bankruptcy order.

30. I should read the following passages:

31. I should interpolate that Mr Slater of Butcher Burns, referred to by the learned judge at page 27, was Braybrook’s solicitor.

32. Accordingly, I am of the view that District Judge Short reached the right conclusion on 27^th September 1995, both the petitioning creditor Coopers, and the supporting creditor, Baybrooks, not merely had, in each case, the benefit of a regular judgment against Mr Bishop, but such arguments as Mr Bishop had, in relation to the possibility of successfully appealing those judgments or raising counterclaims which could be set off against the judgment debts, were not such as to justify dismissing or adjourning the bankruptcy petition, and there were no special circumstances open to Mr Bishop to rely on.

33. I reaching this conclusion ignoring the history after 27^th September 1995 (save in so far as I rely on hearings before the High Court in relation to the alleged procedural defects). I do so because Mr Bishop has raised a large envelope of complaints about the way in which matters have been dealt with by the Court. In fairness to the Court staff, who are criticised by Mr Bishop, I should say that I entertain the gravest doubts as to whether any of Mr Bishop’s allegations have any foundation in fact at all.

34. Assuming, as I strongly believe is more likely than not, that Mr Bishop has little (if anything) to complain about the way in which matters have proceeded since 27^th September 1995, it appears to me that the events after that date strongly reinforce the conclusion that I have reached. There is no doubt that Mr Bishop has attempted to appeal and/or to annul the bankruptcy order made against him on a number of occasions. While I will assume in his favour (albeit with substantial reservations as to its justification) that on one or two of those occasions there may have been some unfairness perpetrated on Mr Bishop (and I think it right to say that, if there was, it is very likely to have been inadvertent) but that does not alter the fact that he has made a number of attempts to challenge the bankruptcy order against him, and they have always failed. Further, on three occasions, a Judge (or Deputy Judge) of the High Court has had to consider an application by Mr Bishop in connection with his bankruptcy. Mr Mann and Judge Levy expressly upheld, and refused to annul, the bankruptcy order. Rimer J made clear, if obiter, observations about the correctness of the order.

35. In all these circumstances, it seems to me that, if one takes into account the events since the bankruptcy order was made against Mr Bishop, the conclusion, that his present application to annul (be it treated as a fresh application to me, or an appeal against the decision of District Judge Hewetson-Brown of 16^th December 1998) should fail, is strongly reinforced.

36. I should add this for the sake of completeness. If Mr Bishop’s application before me is wider, or intended to be wider, than I have so far assumed, that would in no way alter my conclusion. Reviewing the mass of documentation (much of it, I am bound to say, irrelevant, repetitive or both, and a lot of it also highly tendentious) he has put before the Court I consider that there is simply no basis upon which he can challenge the bankruptcy order made against him, whether in light of the facts he relies on before 27^th September 1995 or the matter which have occurred since that date.”

37. Nourse LJ refused permission to appeal to the Court of Appeal against Neuberger J’s decision on 8^th May 2000. Not daunted by Neuberger J’s judgment, on 14^th December 1999 and 2^nd January 2000 the respondent wrote fresh threatening letters to D.E. Braybrook. Both of these letters referred to the “illegal bankruptcy order 27^th September 1995”. I will not read out their whole text. The flavour is perhaps given by the first two short paragraphs in the letter to D.E. Braybrook of 14^th December 1999:

38. I proceed now to Action 7. There is very little paperwork to show what this was about. The respondent seems to have sought to bring proceedings as “managing trustee” of an institution by the name of Handlerose Pension Fund for damages said to be due under the terms of a lease. In September 1996 District Judge Richardson appears to have struck out the claim. The respondent issued a Notice of Appeal but that was struck out by HH Judge Cooke on 22^nd October 1996.

39. Action 9. By writ issued on 31^st May 1996 the respondent and two other plaintiffs which one may describe as creatures of his -- one was Handlerose Pension Fund -- claimed damages particularised at over £400,000 against three defendants. The defendants were two individuals,

40. Mr Hopkins and Mr Reynolds (but sued together as a partnership), and the third defendant was a firm called Taylors which from now on figures very considerably in the story.

41. The general endorsement on the writ in this action includes this assertion:

42. In a form of supporting statement the respondent asserted that he had the authority of his trustee in bankruptcy to proceed with this action. The third defendant applied to strike out the claim. The third defendant has a firm of accountants which, as I understand it, acted as liquidators (or one of their partners acted as liquidator) of a company called Handlerose Limited with which the respondent was much concerned.

43. Evidence was sworn on the third defendants’ behalf to the effect that the respondent had no locus to sue and a letter was exhibited which shows, beyond the possibility of any doubt, that the respondent’s trustee in bankruptcy had by no means authorised the bringing or continuance of the action.

44. On 6^th November 1996 Master Trench struck out this action so far as it was brought by the third plaintiff, Handlerose Pension Fund, against the third defendant. On the same day the plaintiffs’ claims against the first and second defendants were dismissed by consent on the basis of certain undertakings given. There seems also to have been an order on 6^th November 1996 (I am not confident that the paperwork is complete) to the effect that the respondent no longer had authority to act as trustee of the Handlerose Pension Fund. The respondent appealed to the Judge in Chambers at least against this last order. The appeal was dismissed by Buckley J on 14^th January 1997.

45. Then on 31^st January 1997 the respondent, acting on his own behalf, signed a default judgment against the third defendants and had also issued an application for summary judgment against then under Order 14. On 25^th February 1997 Master Trench stayed execution of the default judgment and adjourned the Order 14 summons. The third defendants had, in fact, served a defence in September 1996. That, plainly and obviously, was well known to the respondent. It is entirely clear that the default judgment should never have been entered.

46. On 28^th September 1997 the respondent issued notices of appeal to the Court of Appeal against the orders of Buckley J and Master Trench. On 16^th and 18^th April 1997 he issued two further summonses seeking various heads of relief against the third defendants, including summary judgment in favour of all three plaintiffs.

47. On 25^th April 1997 Master Trench set aside the default judgment and gave unconditional leave to defend. Three days later, on 28^th April, the respondent issued a further summons against the third defendants alleging some form of contempt of court. The summons is not easy to understand.

48. On 12^th May 1997 he served a Notice of Appeal against Master Trench’s order. The notice refers on its face not to the order of 25^th April when the learned Master set aside the default judgment, but to that of 25^th February when he stayed execution of the default judgment. At all events, on the same day (12^th May 1997), the respondent issued a separate application to the Judge in Chambers seeking damages and costs, and I read from part of this document:

49. On 22^nd May 1997 Sir John Wood dealt with what he referred to as a summons under Order 52 of the Rules of the Supreme Court alleging contempt by a representative of the third defendants. It is not I think entirely clear whether the application before Sir John Wood was in fact the summons of 12^th May 1997 which I have just described. At all events, Sir John Wood dismissed the application before him and ordered indemnity costs.

50. Mr Jay tells us that this court in February thought it right to bespeak a transcript of Sir John Wood’s judgment, which is before us, having been exhibited to a recent affidavit sworn by a representative of the Treasury Solicitor’s Department. Sir John Wood says this at page 8, line 6:

51. Sir John Wood also made an order, as he was asked to do by counsel for the third defendants, prohibiting the respondent from making any further applications without leave. The respondent seems to have continued this action in his own name and to have joined other parties. However, it remains stayed as against the third defendants.

52. Action 10 was an action commenced by a writ in the Chancery Division on 9^th May 1997. The respondent sued Braybrook, Coopers and Taylors who, as I have said, were the third defendants in Action 9. He also sued the Official Receiver and his trustee in bankruptcy and a further defendant. The Statement of Claim alleged conspiracy to defraud. The action is manifestly an attempt to rerun the respondent’s previous complaints. On 30^th May 1997 the respondent signed default judgments against the first and fifth defendants and, on 16^th June 1997 against the second defendant who was the Official Receiver. There is an affidavit from the Official Receiver in support of an application by him to strike out the claim as an abuse. On 18^th and 20^th June 1997 the respondent issued three summonses seeking various forms of relief.

53. On 9^th July 1997 Deputy Master Winder set aside the default judgment against the second defendant. On 18^th July 1997 Master Bowman on the court’s own motion set aside the default judgments against the first and fifth defendant and ordered that all further proceedings be stayed pending the payment of those defendants’ costs.

54. On 5^th September 1997 Evans-Lombe J dismissed the respondent’s appeal. The action remains stayed. It is entirely beyond argument that it was completely misconceived. It is an abusive attempt to relitigate matters already disposed of adversely to the respondent and, so far as there was any substance in the respondent’s claims, at least against defendants such as Braybrook and Coopers, he had no standing to sue without his trustee’s consent.

55. In Action 11 the respondent claimed damages for wrongful interference with goods. The writ was issued on 29^th May 1997. The claim was, in effect, a rerun of Action 9. The defendants were Barclays Bank and again Taylors. On 19^th September 1997 Master Bowman struck out the statement of claim, dismissed the action and ordered that no further proceedings be instituted against Taylors without leave of the Judge in Chambers.

56. On 11^th December 1997 the matter went before Neuberger J, presumably on appeal. He took the view that the claim was no better than a thinly veiled attempt to avoid the stay imposed by Sir John Wood in Action 9.

57. On 20^th January 1998 the respondent issued a further summons against Taylors. As I understand it, the outcome of that is not known. There was a further application returnable before Neuberger J issued on the same day. A somewhat inconclusive order was made in relation to that on 30^th January 1998.

58. Actions 12, 13 and 14 may shortly be described together. They were, from first to last, nothing but a rerun of earlier claims, in particular Actions 9 and 11. As I have just made plain Action 11 was a rerun of Action 9. All three actions were dismissed by Master Bowman on 19^th September 1997 against the first defendants who were, yet again, Taylors.

59. On 26^th October 1997 Master Bowman dismissed Action 13 as against the Official Receiver and he also dismissed the claim against the solicitors, Butcher Burns, in Action 14.

60. On 11^th December 1997 Neuberger J made orders as follows: he dismissed the respondent’s appeal against Master Bowman’s order dismissing the actions, and transferred the respondent’s claims against Taylors in Actions 11 to 14 to the Queen’s Bench Division where they were caught by the stay ordered by Sir John Wood.

61. Lastly, Neuberger J made a further Grepe -v- Loam order preventing the institution of further proceedings against Mr Smith of Taylors without leave.

62. This account I fear is not exhaustive. Mr Bishop, the respondent, has litigated with accelerating energy as the years have gone by.

63. 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. 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.

64. In the course of all those activities, he has abused and misused the procedures available for bona fide litigants. He has entered default judgments in circumstances when he must have known that that was, to put the matter extremely mildly, wholly inappropriate. He has misled courts about what other courts had been doing. The whole pattern, with which alas this Court is all too familiar from other cases, is one in which, with increasing obsession about what he sees as his grievances, he persistently and energetically misuses the process of the court. It is in the public interest that he should now be prevented from doing so. The Grepe -v- Loam orders which have been made are not sufficient. They are specific to the particular cases in which they were ordered and indeed they protect only specific named parties. This is not one of those cases in which the allegedly vexatious litigant has only aimed his litigation at one particular target. Here there are several. It is necessary to avoid the risk that the respondent will find a means of process that would avoid the Grepe -v- Loam orders. In addition, it is not right that the Court of Appeal should be vexed every time a wholly unmeritorious application is made. The statute gives no right of appeal against High Court decisions refusing leave to take proceedings once a section 42 order is made.

65. Lastly, it seems to me that the court process itself, quite apart from the litigants whom this respondent has attacked, needs to be protected. It needs to be protected not for the judiciary’s sake, but so that a proper service can be given to bona fide litigants. The public interest is therefore engaged and it is right that the Attorney General should take the responsibility for bringing this application, as he has done.

66. 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.

67. MRS JUSTICE RAFFERTY: I agree.

68. LORD JUSTICE LAWS: Mr Jay, there is nothing else to say in the matter, is there?

69. MR JAY: My Lord, no.

70. LORD JUSTICE LAWS: I am very grateful to you, thank you.