IN THE HIGH COURT OF JUSTICE CO-3768/95

Royal Courts of Justice

Strand

London WC2

Tuesday, 9^th July 1996

B e f o r e:

LORD JUSTICE RUSSELL

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MR JUSTICE SCOTT BAKER

HER MAJESTY'S ATTORNEY-GENERAL

-v-

LEONARD DAY

(Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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THE APPLICANT appeared in person.

MISS D ROSE (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

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J U D G M E N T

(As approved by the Court)

(Crown Copyright)

Tuesday, 9^th July 1996

LORD JUSTICE RUSSELL: This is the judgment of the Court.

The Attorney General seeks an order under section 42 of the Supreme Court Act 1981 to prevent Mr. Leonard Day from instituting civil or criminal proceedings without the leave of the High Court.

Section 42(1) provides:

In section 42(1A) the terms “civil proceedings order,” “criminal proceedings order” and “all proceedings order” are defined.

The Attorney General is asking for an all proceedings order. Miss Rose, who has presented the case on his behalf with organisation and clarity has reminded us that in considering whether legal proceedings or applications brought by a Plaintiff are vexatious the court should concentrate on the proceedings brought rather than on any underlying right which the bringer seeks to assert. Furthermore, we have to look at the whole history and not simply at whether an individual pleading discloses a cause of action. What matters is the number of applications or proceedings brought, their general character and result. In re Caffers (1897) 45 Weekly Reporter 365 at p.366 per Wright J

There is a particular aspect to the present case which, it is submitted, and we accept, is relevant and that is the manner in which the proceedings are conducted. This case concerns not just a multitude of fruitless proceedings and applications that cause inconvenience and expense to others but also threatening and abusive correspondence to other parties and court staff.

Most, but not all, of Mr. Day's litigation stems from his divorce and the subsequent award of the custody of the children of his marriage to his former wife, now Mrs. Hughes. There is no doubt that he has found the situation most distressing and stressful. He has, understandably, been unable to come to terms with the fact that his younger children have been adopted and that he no longer has contact with them.

Miss Rose divides the claim for an order under section 42 into a number of headings which we take in turn.

(1) The large number of applications

On 8^th October 1990 in the Swansea County Court the Judge granted a decree nisi of divorce with custody of the four children of the family to the mother (now Mrs. Hughes) and reasonable access to Mr. Day. The elder children were then 16 and nearly 15, the younger ones 2 and 1.

Between October 1991 and the present time there have been some sixteen applications relating, for the most part, to access or contact to the younger children. Miss Rose took us through each of them. They are helpfully set out in her skeleton submissions and are referred to in the chronological history of proceedings in exhibit TCAA 1 to the affidavit of Mr. Adcock in his affidavit of 10^th November 1995. It is unnecessary in this judgment to refer to each one.

On 8^th June 1992 Judge Lewis Bowen ordered that Mr. Day's application for defined access be refused and that there be no further access without leave of the court. But on 23^rd July he made a fresh application claiming that Mrs. Hughes and her new husband were in contempt of court for denying him access.

On 28^th August 1993 he made an application for a residence order for the younger boy and a contact order in respect of the younger girl just four days after he was unsuccessful in seeking the discharge of an injunction restraining him from going to the Hughes house. In the application he referred to Mr. Hughes as a “possible pervert.”

(2) The terms in which the applications were made

Mr. Day made it clear to us, and it is apparent from the documents, that he has a strong dislike for people and things Welsh. This probably emanates from the fact that his former wife has married a Welshman. See for example his reference to bringing up his son amongst people “biased in their Welshness”. There are other aspects of abuse in the terms in which his applications are made. These include unjustified allegations of contempt of court, criminal behaviour and mental imbalance against those connected with the litigation.

(3) Threatening and abusive correspondence

A similar vein runs through the correspondence (see for example a reference at T.1 p.33 to the Welfare Officer being “a liar, a cheat and a gay”). A letter to the Chief Clerk received at Swansea County Court on 21^st July 1993 is in obscene terms. The staff and the Court Welfare Office in Swansea felt intimidated by his threatening visits. There are numerous other examples of offensively written documents in the bundles before us.

(4) Applications made on the basis of misleading facts

In October 1993 Mr. Day applied to the Watford County Court for a residence order claiming “the mother has suffered a mental breakdown and the step-father is a child abuser". He stated in the application that there were no proceedings or orders relating to the children, thereby concealing the long history of litigation in Swansea.

A critical hearing concerning the future of Mr. Day's children took place in Cardiff in June 1994 before Stuart-White J. At the end of it he gave a comprehensive judgment which we have read with care. The Judge concluded that the case was a wholly exceptional one and that the welfare of the two younger children demanded that an adoption order be made, not withstanding the opposition of Mr. Day. He said at p24E :

On 17^th October 1994 Mr. Day made an application for contact claiming, which was untrue, that he had been given leave to make the application the previous June.

(5) Other proceedings

Mr. Day has commenced some eight other proceedings, some as by products of his matrimonial dispute and others unconnected with it.

(i) 1990.D.No.6841

This action against the Home Secretary was struck out on the non-appearance of Mr. Day on 30th November 1990 under Order 18 rule 19. Mr. Day appealed. The appeal was dismissed by Buckley J. on 4th June 1991. Again Mr. Day did not appear. Matters did not, however, rest there, because on 20th October 1993 he succeeded in amending the writ to include as defendants various Chief Constables. The action which claimed £1 million damages for malicious prosecution, false imprisonment, criminal libel, manslaughter, conspiracy, incitement, assault and fabrication, and harassment over the period 1979 - 1990 was finally dismissed in January 1996.

(ii) Action No.9300509 in the Neath and Port Talbot County Court

This was struck out on Mr. Day's non-appearance on 5^th August 1993. He applied to reinstate the claim, which was against Mr. Hughes, and this too was struck out, when Mr. Day failed to attend on 30th September 1993. He appealed and the action was reinstated. The action was finally heard on 8^th February 1994 when the plaintiff's claim was dismissed.

Mr. Day's contention was that Mr. Hughes had damaged his car in January 1993 but no evidence was adduced of any damage to the vehicle. Mr. Day made further applications to the court in May 1994, January 1995 and November 1995. Each failed when he did not appear at court on the due date. A consequence of this sort of behaviour is the inconvenience and expense occasioned to the other party, in this case Mr. Hughes. One inference is that this was quite deliberate because Mr. Hughes had supplanted him in the lives of the children.

(iii) Private Prosecution of Mr. Hughes

On 12^th July 1993 Mr. Day laid informations against

Mr. Hughes alleging assault and criminal damage (the same damage has formed the basis of the civil proceedings in the Neath and Port Talbot County Court). Mr. Day failed to appear and the case was dismissed. He then obtained leave to apply for a judicial review of the Magistrates decision not to adjourn the proceedings in his absence. He failed to serve the notice of motion and eventually, on 24th July 1995, his application to enter the notice of motion out of time was refused and his application for judicial review dismissed.

(iv) 1993 D No.2603

These proceedings were against Mr. and Mrs. Hughes and their solicitor, the Pontardawe police and the adoption section of the West Glamorgan Council. The claim was for damages for child abuse and emotional stress. The action was struck out in December 1993 under Order 18, rule 19. Mr. Day did not attend and was not represented. He issued a notice of appeal in February 1994 claiming he had not been served with the summons. There was never the remotest doubt that these proceedings were vexatious.

(v) No.9311371 in the Watford County Court

Mr. Day brought this action against the Metropolitan Police claiming damages for false imprisonment, criminal harassment and criminal damage. The claim arose out of an incident in October 1993 when he was stopped in his car for suspected motoring offences. On 21^st April 1995 his claim was struck out. He appealed out of time, but his appeal was dismissed on 10^th November 1995 when he failed to attend. He applied for that order to be set aside but the application was dismissed. As with his other action against the police, this was marked by abusive correspondence on his part. He also threatened libel proceedings against the Metropolitan Police solicitor.

(vi) 1993 D 2856

On 20th December 1993 Mr. Day started a libel action against the West Glamorgan Welfare Office arising, apparently, out of what the Welfare Officer or Officers had said in proceedings in connection with his children. This action was struck out by consent following an affidavit from a Mrs. Kirby in which she assured the court that Mr. Day recognised that his frenzied actions had harmed him and that the claim would be withdrawn. He nevertheless appealed on 13th May 1994 and the appeal was dismissed on 14th June 1994 when Mr. Day failed to attend. He wrote a letter saying a further appeal was to be heard in the Royal Courts of Justice on 14th October 1994 but in the event did not pursue it.

(vii) Action No.9211968 in the Gloucester County Court

These proceedings were brought against Mr. Day by Bristol and West Building Society. The District Judge refused to suspend a warrant of possession. He appealed unsuccessfully to the judge and once again did not appear on the day fixed for the hearing. Another judge refused, a few days later, to reinstate his appeal. He then took the matter to the Court of Appeal but was again unsuccessful. Farquharson L.J. observed that there was absolutely no defence to the Building Society's application for possession.

Action No.9104614

This was a claim by Mr. Day against a travel company in respect of a spoilt holiday. In October 1991 a District Judge heard the evidence and dismissed the claim. Mr. Day appealed and Judge Krikler dismissed the appeal. He refused Mr. Day leave to appeal to the Court of Appeal. Over eighteen months later Mr. Day returned to the same Judge and asked for his appeal to be reinstated and heard. Again Judge Krikler refused. In November 1994 Mr. Day tried again. This time before the Court of Appeal. But his application for an extension of time and leave to appeal was refused.

Against this background the Attorney General sought an order under Section 42. His application first came before another division of this Court on 29^th January 1996. The Court declined to make an interim order because of the imminence of the date set for the substantive hearing. Saville L.J. did, however, indicate to Mr. Day that there appeared to be a strong case that he was a vexatious litigant and that he would be well advised in his own interests to exercise restraint in starting any more proceedings prior to the substantive hearing. Unfortunately he did not heed this advice and, amongst other things, issued three writs on 27^th February 1996. One was against the South Wales Constabulary claiming damages and loss of property, false imprisonment and perjury; one against the West Glamorgan County Council alleging “defamation/slander with malicious intent” and the third solicitors negligence arising out of the adoption hearing in Cardiff. All appear to be vexatious.

A matter that has caused this Court some concern is the fact that Mr. Day has taken advantage of the opportunity afforded to litigants in person in receipt of income support to issue writs without payment of the usual fee. It is, we were told, possible for such a person to issue a writ without any regard being had to the nature of the endorsement on it. Mr. Day has issued a number of writs that disclose no cause of action. Had he been required to pay some fee he might have had second thoughts before incurring the expense. Alternatively, if the proposed writ had first to be put before a Master with a discretion to refuse leave, several of the writs in this case would never have been issued.

We draw attention to the recommendation in the interim report of the Working Party on Litigants in Person chaired by Otton L.J. that:

“Masters should have jurisdiction to refuse leave to issue a writ in cases where the document to be issued is so far from any writ recognised by law as to be fairly branded no writ at all.”

On 23^rd February 1996 Mr. Day wrote to the Solicitors' Complaints Bureau complaining in offensive terms about the behaviour of his former wife's solicitor. The letter was in Mr. Day's hand writing but it purported to be from his former wife's present husband. Mr. Day agreed before us that the letter was in his writing, but he claimed to have no recollection of writing it.

On 20^th May 1996 Mr. Day consented to an interim all proceedings order before a Divisional Court comprising Leggatt L.J. and Sir Iain Glidewell. At the same time the hearing of the present application was adjourned because Mr. Day required more time to prepare his case.

It is unnecessary to relate any of the further history since March of this year.

In advancing his case before us Mr. Day has had the assistance of Mrs. Kirby, his Mackenzie friend. She has appeared in court with him on a number of other recent applications. During the hearing Mr. Day felt under such stress that he was unable to continue to present his own argument. In these circumstances we were prepared to allow Mrs. Kirby to continue the submission on his behalf. We are grateful to her, as other courts have been in the past, for the assistance she has given.

In the end, however, it is clear that Mr. Day has no answer to the Attorney General's submission that the conditions spelt out in Section 42 of the Supreme Court Act 1981 have been met. The core of the problem is that Mr. Day has been and continues to be unable to accept that he cannot see his children. He believes that the legal system and the judges have conspired against him. Nothing, it seems, will persuade him otherwise. That he is dissatisfied with the decisions various courts have reached we have no doubt. But that is not an answer to the present application. Mr. Day did not persuade us, indeed he did not seek to do so, that any one or more of the various actions and applications brought by him was not vexatious. In our view the history of his litigation speaks largely for itself.

It is in Mr. Day's interests, as much as anyone elses, that he be prevented from making any further applications and commencing any further proceedings without the leave of a High Court Judge.

The Attorney General's application succeeds and there will be an order accordingly.

MISS ROSE: My Lords, there is one small matter at the bottom of page 13 of the draft, where, I believe, the date should be 26th March 1996. The date of the interim all proceedings order.

My Lords, there is one further matter, which I apologise for troubling your Lordships. There is a gentleman sitting at the back of the court wearing a brown leather jacket who appears to be a friend or associate of Mr Day.

LORD JUSTICE RUSSELL: I think he has just left.

MISS ROSE: My Lord, I regret to say that he has threatened me this morning.

LORD JUSTICE RUSSELL: He has what?

MISS ROSE: He has threatened me by addressing me as a “fucking bitch”.

LORD JUSTICE RUSSELL: How has he threatened you, Miss Rose?

MISS ROSE: My Lord, he pointed at me, addressing as a “fucking bitch”.

LORD JUSTICE RUSSELL: To your knowledge is he anything to do with Mr Day?

MISS ROSE: My Lord, he was talking to Mr Day. He was in conversation with Mr Day. He is clearly an associate of Mr Day.

LORD JUSTICE RUSSELL: What do you want us to do?

MISS ROSE: My Lord, I am in some difficulty since I do not know his identity. I would ask that he be refrained from addressing me and threatening me.

LORD JUSTICE RUSSELL: He is not in front of the court at the moment. I suspect he may have left the building by now. As soon as you got to your feet there was a rather hasty retreat.

MISS ROSE: My Lord, I suspect he knew what I was going to say.

LORD JUSTICE RUSSELL: Is the tipstaff there?

THE USHER: My Lord, no.

LORD JUSTICE RUSSELL: I would have thought that the tipstaff were outside, within the immediate precincts of the court.

MS KIRBY: My Lord, I could not hear what he was saying -- I could barely hear what he was saying. He appeared to be giving Mr Day some advice and I do not think Mr Day wished him to.

LORD JUSTICE RUSSELL: Do you know this gentleman?

MS KIRBY: No.

LORD JUSTICE RUSSELL: He seems to know Mr Day.

MS KIRBY: He apparently follows all the cases of vexatious litigants but I do not think he is not associate.

LORD JUSTICE RUSSELL: Do you know a Mr Ewing?

MS KIRBY: I, my Lord?

LORD JUSTICE RUSSELL: Yes.

MS KIRBY: When I first started a Litigants in Person Society various people joined ----

LORD JUSTICE RUSSELL: Ms Kirby, I am merely asking you: do you happen to know a Mr Ewing?

MS KIRBY: My Lord, he joined and when I thought that all these people were extremely unpleasant in court and only there to play the court up, I hastily retreated. I do not remember him. I only remember a name.

LORD JUSTICE RUSSELL: Miss Rose, without his physical presence we cannot do anything unless we can identify him. The Associate thinks it was the notorious Mr Ewing. If it was, I suppose we could summoned him here, but it is pretty flimsy evidence; is it not?

MISS ROSE: My Lord, it is. My learned friend heard Mr Day refer to him as “Peter” -- addressing him as “Peter”, so he clearly knows him.

LORD JUSTICE RUSSELL: Is Mr Ewing called Peter Ewing?

MS KIRBY: I do not think he knew who he was, my Lord.

MISS ROSE: My Lord, he did know who he was because he has obviously addressed him as “Peter”. I accept that since he was able to retreat there is nothing that can be done.

LORD JUSTICE RUSSELL: You have liberty to come back if you are so disturbed, Miss Rose.

MS KIRBY: My Lord, I will attempt to be in touch with him and reprimand him because I find him disgraceful.

LORD JUSTICE RUSSELL: I am sorry?

MS KIRBY: I will attempt to be in touch with him and reprimand him because I, too, find him disgraceful.

LORD JUSTICE RUSSELL: But you do not know him.

MS KIRBY: I only know him by name. He joined the Society -----

LORD JUSTICE RUSSELL: What is his name?

MS KIRBY: I hoped to tell you.

LORD JUSTICE RUSSELL: Do not worry any more about it. Least said, soon mended.

Is there any application, Ms Rose?

MISS ROSE: My Lord, no.