IN THE HIGH COURT OF JUSTICE CO 2492/96

(DIVISIONAL COURT)

Royal Courts of Justice Strand

London WC2

Monday, 9^th December 1996

B e f o r e:

LORD JUSTICE McCOWAN

-and-

MR JUSTICE COLLINS

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HER MAJESTY’S ATTORNEY GENERAL

-v-

(1) ALAN DAVID COLLINS

(2) ANN MARGARET COLLINS

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(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-831 3183/0171-404 1400

Fax No: 0171-404 1424

Official Shorthand Writers to the Court)

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MR R SINGH (instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Applicant.

THE RESPONDENT appeared in person.

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J U D G M E N T

(As Approved by the Court)

Crown Copyright

Monday, 9^th December 1996

LORD JUSTICE McCOWAN: I will ask Mr Justice Collins to give the first judgment.

MR JUSTICE COLLINS: There is before the court an application by the Attorney General against Mr and Mrs Collins under section 42 of the Supreme Court Act 1981. The application is for what is termed an all proceedings order under that section. I shall just read the relevant parts of section 42.

“(1) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground -

(a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or

(b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior the court, and whether instituted by him or another; or

(c) instituted vexatious prosecutions (whether against the same person or different persons),

the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order, a criminal proceedings order or an all proceedings order.

(1A) In this section -

‘civil proceedings order’ means an order that -

(a) no civil proceedings shall without the leave of the High Court be instituted by him in any court by the person against whom the order is made;" and then (b) deals with a continuance of civil proceedings and (c) deals with applications in civil proceedings.

“‘criminal proceedings order’ means an order that -

(a) no information shall be laid before a justice of the peace by the person against whom the order is made without the leave of the High Court; and

(b) no application for leave to prefer a bill of indictment shall be made by him without the leave of the High Court; and

‘all proceedings order’ means an order which has the combined effect of the two other orders.”

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. But a balance has to be struck between the protection of those who are the object of litigation by the individual and the individual himself, and the court is entitled to take into account not only the costs which will fall upon the persons against whom the litigation is brought, but also the cost to the public in connection with criminal proceedings. That is particularly relevant when the individual against whom the order is sought has had orders for costs made against him and those orders have not been met.

It is also to be borne in mind that this court cannot act as a Court of Appeal against the various orders that have been made against the respondents in litigation in which they have indulged. We are concerned essentially with the manner in which those proceedings have either been instituted or conducted by the respondents. We say that because before us Mr Collins, who has appeared on his own behalf and on behalf of his wife, has submitted that what lies behind this is misconduct by a solicitor, a Mr Caswell, who acted both for him and for two building societies in connection with the transactions that form the basis of the litigation in which he has been involved. In the course of the various actions that have been brought, orders have been made which Mr Collins says were induced by the negligent or, worse, by the fraudulent conduct of the solicitor concerned and by others. As I say, we cannot in these proceedings consider the rights and wrongs of the actions themselves. We are considering the manner in which these actions were brought and conducted.

Mr Singh on behalf of the Attorney General essentially relies on four matters. He says that the respondents have brought numerous vexatious actions and made many vexatious applications since about 1991, but in particular since 1994. Proceedings have often been dismissed or struck out on the ground that they were frivolous, vexatious or an abuse of the process of the court. When civil proceedings seemed to be getting nowhere the respondents turned their hands to prosecutions in the Magistrates’ Court and those themselves have been vexatious. In one case committal proceedings were undertaken but no case to answer was found, and in the other case there has been a refusal to issue a summons. Finally, Mr Singh says that the evidence shows that the respondents have tended not to pay costs, probably because they lack the means to do so, and indeed bankruptcy proceedings have now been instituted against them, and are, so far as we are aware, still pending.

The background can, I hope, be relatively briefly stated. This litigation in which the respondents are involved stems from three transactions in 1987, 1988 and 1989 respectively. In 1987 Mr and Mrs Collins formed a new company to undertake a residential development in Newport. That company was called A D Collins Site Development Limited. The company entered into an arrangement with the Halifax Building Society to advance monies to assist in that development and Mr Caswell acted both for the Collins company and for the Halifax in connection with that transaction.

Mr Collins says that all went well and in 1988 the company had the opportunity to conduct another development at Welshpool. Initially they were able to fund the matter without going to the Halifax, but the Halifax some time in 1988 approached Mr Collins and suggested that he enter into an arrangement with them. It seemed a sensible thing to do commercially because the terms offered by the Halifax were better than those being offered by the bank. Accordingly, they entered into the second transaction.

Unfortunately, some time in 1990 a dispute arose between the company and the Halifax. By then the Newport loan had been fully repaid, and Mr Collins was anxious that that mortgage should be redeemed. The Halifax refused on the basis that the two mortgages should be consolidated in accordance with what was clause 24 of the relevant mortgage agreement. Mr Collins was advised by Mr Caswell, his solicitor, that there should not be a consolidation, but the matter did not appeal to the judge before whom the matter was raised, and accordingly that issue was lost so far as Mr Collins was concerned. That led to major financial difficulties, which in the end resulted in the company going into liquidation and, as a result of that, the respondents finding themselves bankrupt.

That also, it seems, must have had a knock on effect, because the other transaction in 1989 was the purchase of their home, again with the same solicitor instructed, but this time with a loan from the Tipton and Coseley Building Society. They got behind with the payments on that mortgage and as a result the Tipton and Coseley Building Society in November 1991 commenced an action for possession and obtained judgment in January 1992. There were various applications in that action during 1992 and 1993. During that period the Collinses were represented by solicitors and by counsel, and it is not suggested that there was anything vexatious in the conduct of that litigation, certainly until 1994.

In June 1994 there was an appeal to the Court of Appeal in an endeavour to stay execution of the possession order. The matter was decided by the Court of Appeal on the basis of an attempt to apply section 36 of the Administration of Justice Act, which would have enabled the court to grant relief in certain circumstances. I need not go into the details; suffice it to say that the Court of Appeal dismissed that appeal in June 1994.

Application was made, first of all, for leave to petition the House of Lords, but also to the County Court for a stay of execution, and it was at this stage that things began to go wrong, because one notes that in the application to the County Court for a stay Mr Collins indicates that at the hearing of the appeal in the Court of Appeal on 20th June 1994 counsel, having substituted the original bundle of documents and on a frolic of his own, presented to the court an argument inconsistent with the argument that Mr Collins had believed ought to have been raised.

Shortly thereafter in August 1994 came allegations that the directors of the Tipton and Coseley Building Society and Mr Caswell, the solicitor, had been guilty of dishonesty and of perverting the course of justice. An application for suspension of the warrant was dismissed in August 1994. By now Mr Collins was acting in person, and on 22^nd August 1994 an order was made by His Honour Judge Cavell that the application be dismissed and that no further application be made without leave of a district judge.

In the meantime Mr Collins was bringing actions against the Halifax Building Society. The first such claim was in 1990. That was an action which was brought by Mr Collins’s company against the Halifax Building Society alleging breach of contract and claiming damages. The society issued a summons to set aside on the basis that the company could not act except through a solicitor and that so far as the respondents were concerned there was no reasonable cause of action. That matter was brought to an end as a result of an order made by the Master in July 1991 that a default judgment which had been obtained by the respondents be set aside and that the action should be dismissed.

Subsequently a further action was brought by the respondents against the Halifax Building Society and Mr Caswell and another firm of solicitors claiming damages in relation to the Welshpool and the Newport matters. That action was commenced in December of 1991. In January 1992 an application was made by the first defendant to strike out on the ground, among others, that the matter was res judicata having regard to the previous action to which I have already referred, and eventually on 30th April 1992 the statement of claim was indeed struck out on the basis that the claim was frivolous, vexatious and an abuse of process.

That having happened, in August 1992 a fresh action was brought, this time alleging fraud against, again, the Halifax, Mr Caswell, the other firm of solicitors and this time the Attorney General as well. In October 1992 all claims in that action were struck out by Mr Justice Vinelott, it is recorded in the order by consent, as disclosing no reasonable cause of action. It seems that legal aid had at some stage been granted to the respondents and it would appear that they had been advised that that action could not be pursued. In any event it was struck out.

The respondents then turned their fire on the Tipton and Coseley Building Society, and in February 1993 they issued a writ against that building society claiming damages on the basis of a negligent surveyor’s report. That was the matter which has been raised by them as a defence to the claim for possession brought by the building society, but it was not raised as a counterclaim in those proceedings; it was raised as a separate claim. I should say that this was a claim which was supported by solicitors and counsel, in respect of which again it seems legal aid had been granted.

That claim was amended to add the surveyor as a second defendant, alleging that damage had been suffered by his negligence. So it continued until in August 1995 Mr Collins gave notice that he intended to act in person thereafter and sought leave to reamend the statement of claim, and that reamendment dropped the whole of the existing claim and alleged that the defendants had used a false valuation report and that that had induced the respondents to enter into the mortgage arrangement. So again allegations of fraud were raised in relation to the Tipton and Coseley Building Society.

In August 1994 a further action was brought which covered precisely the same ground against, this time, the building society and the solicitors, alleging additionally that there had been a concealment of the effect of a motorway on the valuation of the property. The second defendants, that is the solicitors, applied to strike out the statement of claim and indicated in the course of that application that the proceedings were vexatious and an abuse because they were being brought concurrently with the proceedings against the valuer and the building society in respect of which the respondents had legal aid. This action was, in February 1995, struck out, again by consent.

There was a further action in 1994 in relation again to the Welshpool matter begun by the respondents against Mr Caswell alleging negligence and breach of contract. That claim included the Tipton and Coseley damages as well as damage allegedly suffered as a result of the Halifax matter. It was ordered in May of this year that that action should be stayed.

Then there was a claim made by solicitors acting for Mr Caswell to serve statutory demands. Mr Collins in May 1996 made an application to set aside the demands and swore an affidavit alleging, among other things, that Mr Caswell was guilty of theft and fraudulent obtaining of monies. An order dismissing that application was made and upheld by Mr Justice Chadwick on appeal.

Finally, so far as the actions are concerned there was an action begun by Mr Collins in the name of the company allegedly pursuant to an assignment from the company’s liquidator against Mr Caswell’s firm for damages amounting to three and a half million pounds in relation, it would seem, to both the Newport and the Welshpool matter, alleging fraud and deception. An application was made by Mr Collins for security of costs in the sum of £1.6 million to be paid into court. That application was adjourned on 8th July of this year with liberty to the defendants to cross-apply to strike out the claim.

No further orders have been made, largely because on 2^nd August of this year a court consisting of Lord Justice Schiemann and Mr Justice Smedley, made an order on the application of the Attorney General that there should be an interlocutory injunction restraining Mr and Mrs Collins from engaging in conduct which would be prohibited were the court to grant an all proceedings order under section 42.

The civil proceedings did not seem to be getting the respondents anywhere, so on 9^th March 1995 they laid informations against the Tipton and Coseley Building Society and the solicitor alleging forgery of the valuation report, theft and dishonesty. Those allegations were dismissed after two days of an old style committal hearing.

Mr Collins then turned his attention in the criminal courts to the Halifax Building Society and sought before the West Bromwich Magistrates’ Court to issue informations against a large number of people, including Mr Caswell, directors of the Halifax Building Society, a solicitor acting for the Halifax Building Society, counsel acting for the Halifax Building Society and another solicitor, again who at one time had been acting, and the solicitor also who acted on behalf of the solicitors indemnity fund in relation to the proceedings against Mr Caswell. Various offences were alleged, including theft, conspiracy to defraud, obtaining by deception and what is described as contempt of statute.

Not surprisingly, the Magistrates were reluctant to issue summonses, but the matter was left that Mr Collins would make further application in due course. In fact he made an application to the Dudley Magistrates before the Stipendiary Magistrate, this time to apply for summonses against the Tipton and Coseley Building Society. The allegations involved that there had been perversion of the course of justice by that Building Society and by Mr Caswell. Those applications were adjourned to 14th August and have been overtaken by the interlocutory injunction to which I have already referred.

The only other matter to which I ought to refer in the history of these events is that there appears to have been an agreement signed by the respondents and on behalf of the Halifax Building Society dated 15^th October, whereby the respondents agree that they will make no more claims by way of civil or criminal actions against the Halifax or anyone acting on behalf of the Halifax, but that specifically excludes any proceedings against John R Caswell and Company, and it also of course does not cover any proceedings against the Tipton and Coseley Building Society.

In the course of these proceedings before us Mr Collins made an application which he lodged last week, to call various witnesses and to issue subpoenas. In the course of his Notice of Motion he alleged that the Treasury Solicitor was assisting the solicitor acting for the indemnity fund in the theft of properties belonging to his company, and he asserted that the Treasury Solicitor was aware of the fraud committed against the limited company and has dishonestly concealed such fraud from the Department of Trade and Industry and has thereby assisted the conspiracy to defraud the limited company.

It is quite plain from all the material to which I have referred that Mr Collins is clear in his mind that there has been dishonest conduct and that anyone who comes into the picture against him is to be tainted with that dishonesty. It is equally clear that Mr Collins has no intention of desisting from litigation. His main point now appears to be that there ought to be a determination whether the conduct of the building society (that is the Halifax Building Society), and more particularly of course of Mr Caswell, has been contrary to section 28 of the Building Societies Act 1962. He says that that was a matter which was left open in a judgment given by Mr Thomas Morison QC (as he then was) in proceedings dealing with the argument whether the Halifax Building Society had the right to consolidate, and, says Mr Collins, that matter still needs to be considered. Mr Nathan, the solicitor who was then appearing for the building society, has, if I correctly understand what Mr Collins is saying, effectively conspired with Mr Caswell to avoid that matter being dealt with.

It will, I think, be clear from the history that I have given of the litigation in which Mr and Mrs Collins have been involved that it has been their practice to try again to deal with matters which have been disposed of against them in proceedings which have come to an end and to try by any means to litigate and to re-litigate the same matters. As time has gone on, allegations of negligence have turned into fraud and allegations of fraud have been used to involve legal advisers and others who have been involved against them.

Whatever may be the rights and wrongs of the initial matters, that is to say the conduct of Mr Caswell in relation to the building society and in relation to advising Mr and Mrs Collins, the fact is that the means that the respondents have used in order to try to seek redress have become, and quite clearly are, vexatious.

I am quite satisfied on the material to which I have referred that both Mr and Mrs Collins have habitually, persistently and without any reasonable cause instituted vexatious civil proceedings, made vexatious applications in civil proceedings and have instituted vexatious prosecutions. In those circumstances I am quite satisfied that this court ought to make an all proceedings order against them.

Mr Collins is of course perfectly entitled to make application to a High Court Judge if he feels there is any specific matter which he can properly litigate, and any such application will in due course, if made, be considered by a judge on its merits.

LORD JUSTICE McCOWAN: I agree.

MR COLLINS: Thank you.

LORD JUSTICE McCOWAN: Is there anything further?

MR COLLINS: Nothing further, my Lord.