IN THE HIGH COURT OF JUSTICE CO-215/97

(DIVISIONAL COURT)

Royal Courts of Justice

Strand

London WC2

Wednesday, 18^th June 1997

B e f o r e:

LORD JUSTICE SIMON BROWN

-and-

MR JUSTICE GARLAND

- - - - - - -

HER MAJESTY’S ATTORNEY-GENERAL

-v-

MICHAEL FABIAN

- - - - - - -

(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)

- - - - - - -

THE APPLICANT appeared in person but withdrew.

MR R JAY (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent.

J U D G M E N T

(As approved by the Court)

(Crown Copyright)

Wednesday, 18^th June 1997

LORD JUSTICE SIMON BROWN: This is the Attorney-General’s application pursuant to section 42 of the Supreme Court Act 1981, as amended, for an all proceedings Order against the Respondent, Michael Fabian. The grounds of the application are that the Respondent has habitually and persistently, and without any reasonable grounds, instituted vexatious civil proceedings, made vexatious applications in civil proceedings and instituted vexatious prosecutions. I should at this stage set out subsections (1) and (1A) 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 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;

(b) any civil proceedings instituted by him

in any court before the making of the

order shall not be continued by him

without the leave of the High Court; and

(c) no application (other than one for leave

under this section) shall be made by

him, or any civil proceedings instituted

in any court by any person, without the

leave of the High Court;

‘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.”

A section 42 all proceedings Order was, it may be noted, made on an interim basis by this court consisting of Lord Bingham CJ and Moses J on 11^th February 1997, the court at the same time ordering the hearing of the substantive application to be expedited and requiring the Respondent’s evidence to be filed within 35 days. The court at that stage remarked (albeit, of course, then only on a provisional basis) that the case disclosed against the Respondent appeared to be a strong one.

At the outset of the hearing before us today the Respondent applied for leave to call oral evidence. In particular, he appeared intent on examining or cross-examining Sir Nicholas Lyell QC, MP, the Attorney-General under the previous administration who initiated this section 42 process against the Respondent. Sir Nicholas Lyell, the Respondent observed, has now returned to private practice in Brick Court Chambers, and, says the Respondent, (no doubt, accurately) those Chambers obtain a good deal of professional work from Stephenson Harwood, a firm of solicitors, which, as I shall shortly explain, features prominently in the litigation with which this application is concerned. We refused the Respondent’s application, pointing out that these matters are invariably heard on the documents alone and that there was no conceivable reason for departing from that practice in the instant case. The Respondent thereupon indicated that he proposed to withdraw from the hearing.

After a short adjournment given to allow him to reconsider his decision if he wished, he duly, entirely civilly I should note, reiterated his declared intention. He then withdrew, whereupon Mr Jay for the Attorney-General assisted us with a number of matters which we were anxious to explore. We had, of course, read the voluminous documents in advance so that the hearing took a far shorter time than had initially been anticipated.

Having regard to the way matters have proceeded, I do not propose to give a lengthy judgment. Let me first put the matter very shortly in the round. In December 1991 a dispute arose between the Respondent and the London Mayfair Hotel Limited (hereafter “Mayfair”) arising out of a limited licence granted by Mayfair to the Respondent in respect of the Mayfair Theatre, a part of the hotel building, for a production of Scrooge, a Christmas show which the Respondent was promoting. For present purposes it is entirely unnecessary to go into the rights and wrongs of that dispute. Suffice, at this stage, to say that within the period 12^th December 1991 and 11^th February 1997 (the date of the interim Order referred to) the Respondent brought or counterclaimed in ten actions arising one way or another out of the dispute, five of those actions post-dating a settlement agreement reached between Mayfair and the Respondent whereby Mayfair paid the Respondent £25,000 wholly without any admission of liability. Also within that same period the Respondent laid criminal informations, for the most part against Mayfair’s solicitors and counsel, on no fewer than five occasions.

Throughout this entire period, one may note, the Respondent has been an undisclosed bankrupt. Indeed, although his bankruptcy history is by no means easy to unravel, it appears that bankruptcy Orders have been in operation against him ever since April 1969, four successive such Orders having been made over the years, notably on 16^th April 1969, 6^th April 1977, 1^st September 1992 and 1^st July 1996.

Let me now turn, as briefly as may be, to the ten actions in question, indicating only their essential nature and outcome and listing the Respondent’s applications and appeals within them which are properly to be regarded as vexatious. Were I to explain the full nature of these various applications and appeals this judgment would become exceptionally and needlessly long.

This action was brought by Mayfair in the Chancery Division on 12^th December 1991, the day after Mayfair obtained from Carnwath J an ex parte interlocutory injunction restraining the defendant from entering the hotel or theatre, save for those parts of the theatre to which the licence applied, and further retraining him from causing nuisance to Mayfair and their employers. Within that action the Respondent made a number of wholly unmeritorious applications and appeals. They are as follows:

(1) An application dated 1^st April 1992 to set aside an Order made by Master Winegarten on 12^th March 1992, the Respondent’s application being dismissed with costs on 19^th May 1992;

(2) The Respondent’s appeal lodged on 30^th July 1992 against an Order made by Master Winegarten on 19^th May 1992, an appeal struck out by His Honour Judge Baker QC on 21^st October 1992;

(3) The Respondent’s appeal against Master Winegarten’s Order dated 25^th February 1992, an appeal dismissed by Harman J on 26^th February 1993;

(4) The Respondent’s appeal dated 25^th March 1993 to set aside judgment given against him in the action on 23^rd January 1992;

(5) The Respondent’s Notice of Appeal dated 23^rd November 1995 against Master Winegarten’s decision of that date. The Master refused the Respondent’s application to reinstate the case;

(6) On 26^th January 1996 Rimer J dismissed with indemnity costs the Respondent’s appeal against Master Winegarten’s Order of 23^rd November 1995;

On 2^nd February 1994 that first action was compromised. The terms of compromise appear in a comprehensive four-page agreement under which the Respondent acknowledged receipt of £25,000 in full and final settlement of all claims and causes of action which he might have against the hotel, any associated company and all past and present employees, directors, solicitors, counsel and so forth. He undertook not to commence any or any further legal proceedings of whatsoever kind against the hotel or any of the other parties. In paragraph 9 of the agreement he agreed that nothing in the document was to be taken as an acknowledgment that he had any legitimate claim against the hotel or any of the other parties. He furthermore confirmed that he had been advised to seek independent advice before signing the document and that he signed it of his own free will having fully understood it. He confirmed that no pressure or influence had been brought to bear upon him and that in signing it he was not relying upon any representations. Mayfair were ready to reach that agreement because of the persistently harassing manner in which the Respondent had up till then been pursuing his supposed grievance against them.

This action was brought on 30^th January 1992 to recover a liquidated debt owed by the Respondent for the provision of advertising services. On 21^st February 1992 the plaintiff company obtained judgment in default of defence. The Respondent’s vexatious applications and appeals within those proceedings included the following:

(1) An application on 13^th August 1994 to set aside the default judgment on the grounds that the proceedings had not been served. That application was dismissed with costs by the District Judge on 28^th August 1992;

(2) On 25^th February 1993 the Respondent applied to set aside judgment and for leave to appeal out of time. There was no merit in either application;

(3) On 13^th February 1993 the Respondent, without leave, filed an amended defence and counterclaim claiming the sum of £380,895;

(4) On 19^th May 1995 the Respondent applied within those proceedings to join 25 additional parties as defendants to his counterclaim. Those parties, one may note, included the Lord Chancellor and the Lord Chief Justice. The application was dismissed with costs on 10^th July 1995;

(5) On 19^th June 1995 the Respondent applied, inter alia, to strike out an Order of the District Judge on 10^th July 1995. That application was dismissed by Judge Simpson on 4th December 1995;

(6) On 29^th February 1996 the Respondent issued 16 witness summonses, 12 of which were set aside with indemnity costs in September 1996;

(7) On 17^th December 1996 the Respondent unsuccessfully appealed against the Order at (6). Thereafter the proceedings were stayed.

Action 3: The Respondent v Ms Dagmar Woodward.

The Respondent brought this action against Mayfair’s General Manager on 28^th August 1992, claiming the return of monies in the sum of £4,472. The Respondent’s allegation was that it was the defendant who had entered into the licence agreement. The action was a transparent attempt to relitigate the issues between Respondent and Mayfair in the first action. It was, indeed, contrary to the Respondent’s case in that first action.

On 22^nd October 1993 the Respondent’s claim was struck out under Ord. 13, r.5 of the County Court Rules. Amongst the grounds for such striking out were, first, that the proceedings were frivolous and vexatious: the contract was with the hotel and not with its General Manager. Secondly, that, in any event, as stated, the Respondent was an undischarged bankrupt who had no right to bring such proceedings.

Action 4 was a second action brought by the Respondent against Ms Woodward. This was brought on 15^th September 1992 claiming an alleged loss of income of £82,672. It was vexatious for the same reasons as the third action and, indeed, was struck out on the same occasion.

Action 5: The Respondent v Barr; Meyer; Mander; Bartle & Cairns.

This action was commenced on 14th September 1993 against various of Mayfair’s directors and company secretaries, seeking alleged loss of income and profits in the sum of £319,714. The action was discontinued by consent on 1^st March 1994 as part and parcel of the compromise agreement to which I have already made reference. These proceedings, in any event, manifestly involved duplicity of action and constituted another transparent attempt to relitigate the subject matter of the first action.

The Respondent issued proceedings on 15^th February 1994 in the Bournemouth County Court claiming damages for libel for what he claimed was an “unwarranted attack” made upon him in the Evening Standard and The Stage. The action was clearly vexatious since the County Court does not have jurisdiction in regard to libel. It was, accordingly, struck out on 12^th May 1994, the Respondent’s appeal being dismissed on 5th October 1994.

This action, again in the Bournemouth County Court, was brought on 15^th February 1994, claiming damages initially “exceeding £5,000”, later amended to £500,000, against representatives of the London Theatre and the Provincial Theatre Councils alleging conspiracy to attack the Respondent in the press. The vexatious nature of the proceedings is apparent from the pleadings: no good cause of action was disclosed. Those proceedings have since lain dormant.

The Respondent brought this action in the Bournemouth County Court on 23^rd May 1995. The three defendants are solicitors in the firm of Stephenson Harwood, the firm which acted throughout as Mayfair’s solicitors in regard to the theatre dispute. The action purported to be for damages against those various solicitors for causing or permitting their clients to lie on oath against the Respondent.

On 29^th February 1996 the Respondent applied for six other individuals to be joined as defendants, including counsel, Mr Edwin Johnson, who on Stephenson Harwood’s instructions was acting for Mayfair in the proceedings. The entire action was plainly without any foundation and, on 5th June 1996, it was struck out under Ord. 18, r.19 of the Rules of the Supreme Court, having in the meantime been transferred to the High Court.

On 2^nd July 1996 the Respondent’s appeal was dismissed by Smedley J. The action was brought, one may note in passing, in the clearest possible breach of the terms of the compromise agreement earlier reached.

Action 9: The Respondent v The Crown Prosecution Service, (sued in the name of one of their senior employees, Mr Youngerwood).

This action was brought on 25^th October 1995 in the Bournemouth County Court, claiming damages for negligence in relation to the Crown Prosecution Service’s decision to take over and discontinue certain criminal informations which, as I shall shortly relate, the Respondent had by then already laid against the solicitor, Miss McKee. These Particulars of Claim disclosed no good cause of action and were struck out on 12^th January 1996.

By a writ issued in the Chancery Division on 24^th June 1996, the Respondent sought to reopen all the same matters that had been dealt with and ultimately compromised in the first action. Plainly that was vexatious on several grounds and the action was struck out on 11^th September 1996.

In total, therefore, eight out of the Respondent’s ten actions were either dismissed or struck out; one was compromised; one lies dormant.

Let me turn next to the criminal informations which the Respondent has laid in connection with this dispute. On 28^th June 1995 the Respondent laid two informations for perjury against Emma Jane McKee in the City of London Magistrates’ Court. Those were the summonses taken over by the Crown Prosecution Service and discontinued, the event underlying the Respondent’s unsuccessful claim advanced in action (9).

On 15^th March 1996 the Respondent laid two further informations for perjury: one against Emma Jane McKee, the other against Edwin Johnson of counsel. Very wisely the court refused to issue summonses upon those informations.

At this point I interrupt the sequence of informations laid by the Respondent because next, chronologically, comes the prosecution and conviction of the Respondent himself for three offences under the Telecommunications Act 1994. Let me quote one of these three offending communications, a fax sent by the Respondent to Emma Jane McKee on 22^nd June 1995. I do so because it seems to me to provide a good illustration of the deeply offensive and vindictive character of the Respondent’s conduct throughout this whole campaign:

“You have betrayed Master Winegarten.

You devious little bitch.

He tried to support and help you. You are a disgrace.

My God, I thought you were less than a respectable “tart; I didn’t know you were so amateurish and horrid. YUCK.”

That was copied to Master Winegarten.

I think it appropriate to record also at this stage that that was not the first criminal conviction recorded against the Respondent. In 1978 he was sentenced to six years’ imprisonment upon three indictments for a large number of offences of dishonesty, notably offences of theft, of which there were several counts, obtaining pecuniary advantage by deception, obtaining property by deception, forgery, uttering a forged document and fraud. In 1992 he was convicted in the Republic of Eire of two minor offences, respectively theft and fraud.

Given that we have to make some assessment of the Respondent’s character in evaluating whether or not he had reasonable grounds for taking all the various steps that he did take in the course of his protracted dispute with Mayfair and others acting on their behalf, it seems to me legitimate to note the Respondent’s own criminal record. It is, in my judgment, a record which reveals him to be, at the very least, a man not invariably to be trusted.

I return to the series of informations laid by the Respondent. On 10^th and 12^th November 1996 he laid nine further informations, variously against Miss McKee and Mr Duncan, alleging conspiracy to obtain pecuniary advantage by deception and a range of other offences. The court regrettably issued summonses pursuant to those informations. Again, however, they were taken over and discontinued by the Crown Prosecution Service. Then, in the course of what the Lord Chief Justice, giving judgment on the interim application, called “... a febrile flurry of activity...” once the section 42 proceedings had been served upon him, the Respondent, on 6^th February 1997, laid yet another information against Miss McKee and, on 10^th February 1997, also against the Attorney-General. The latter information alleged that between 10^th December 1991 and 22^nd January 1997 the Attorney-General had agreed with others on a course of conduct amounting to the perversion of the course of justice contrary to a number of statutes, including the Criminal Law Act, Criminal Attempts Act, Computer Misuse Act, and the Trade Union and Labour Relations Act. The court did not issue a summons upon that information. As stated, the very next day (11^th February 1997) the Divisional Court made the interim Order against the Respondent. Even following that, the Respondent has continued to make intermittent applications for leave to bring further proceedings of one sort or another before the courts. None of these applications I understand to have been successful.

The proper approach to section 42 applications is well established and beyond dispute. In deciding whether the conditions of the section are satisfied, we are required to look at the whole history of the matter (see, for example, Re Vernazza [1959] 1 WLR 622). As to the standard of proof to be satisfied by the Attorney-General, it is the civil standard having regard to the seriousness of the issue.

Directing myself in accordance with those principles, I have not the least doubt that this is an application which was properly made and which should be granted. The papers before us disclose nothing short of a deplorable and disgraceful campaign waged remorselessly by the Respondent against Mayfair, their staff and their advisors. It has been characterised by a remarkable degree of venom and has encompassed an ever widening circle of victims. The Respondent has shown himself a singularly vindictive and persistent campaigner. He has lost no opportunity to harass all whom he has identified as being associated with his opponent’s cause. He has ruthlessly and maliciously abused the court’s processes and facilities, civil and criminal, in the course of this vendetta.

Over many years I cannot recall a clearer case for a section 42 all proceedings Order. For my part, I would grant it.

MR JUSTICE GARLAND: I agree. In the end when one considers not only the number of civil actions commenced and criminal informations laid by the Respondents, some plainly malicious, but also the multiplicity of summonses, applications and appeals initiated by him, together with telephone calls, faxes and correspondence, some both extremely unpleasant and vindictive, the anxiety and distress caused to individuals, the waste of time and resources, both private and public, resulting from those activities which are utterly to be deplored, I wholly concur with my Lord in the Order that he made.

LORD JUSTICE SIMON BROWN: Yes, Mr Jay.

MR JAY: My Lord, I have no other applications.

LORD JUSTICE SIMON BROWN: So be it.