Neutral Citation Number: [2001] EWHC Admin 428
IN THE HIGH COURT OF JUSTICE CO/2105/2000
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London WC2
Wednesday, 9th May 2001
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE POOLE
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HM ATTORNEY GENERAL
-v-
GREEN
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Computer-aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207-421 4040/0207-404 1400
Fax No: 0207-831 8838
(Official Shorthand Writers to the Court)
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MR M BISHOP (instructed by the Treasury Solicitor) appeared on behalf of the claimant
MR GLENFORD GREEN appeared in person
J U D G M E N T
(As approved by the Court)
Wednesday, 9th March 2001
1. LORD JUSTICE LAWS: In this case the Attorney General seeks civil proceedings orders under section 42 of the Supreme Court Act 1981 against Linbird Green and Glenford Green. The defendants are brothers born in Nottingham of Afro-Carribean origin.
2. When the case was called on shortly after 10.30 this morning, neither defendant was present at court nor represented. We were satisfied, however, that they had had due notice of the hearing date on 22nd March 2001. The Treasury Solicitor wrote to each of them at the address they had given in their acknowledgement of service enclosing an earlier letter from the Administrative Court Office giving today’s date, and the Treasury Solicitor’s letters to the defendant reiterated that the application was listed for today. In those circumstances we decided to proceed with the application. Mr Bishop addressed us, outlining the factual matters relied on by the Attorney and referring to section 42 and some of the jurisprudence concerning that section. I began to give judgment in the matter and had proceeded some little way when, at about 11.20, the second defendant, Mr Glenford Green, arrived in the court. He indicated that he had spoken on the telephone to someone at the court office yesterday. It was not clear to me why he had not arrived in time. His brother was not here and is not here. He told us that the first defendant, his brother, was unwell. I was at pains to enquire of Mr Glenford Green whether he desired that counsel for the Attorney, Mr Bishop, reopen the matter before us. It was very plain, however, that Mr Green was extremely familiar with the documentation that the Attorney General had produced. He did not desire Mr Bishop to address us again in his presence and made it plain that he did not. What he did do was to hand up and read out a document headed “Skeleton Argument of First and Second Respondents”, to which I will make some reference later. He added some further remarks and submissions in support of his and his brother’s resistance to the Attorney General’s application.
3. The proceedings relied on for the purposes of this application comprise some 13 actions. All of them were commenced in the Nottingham County Court. Several were brought by the defendants jointly. The defendants also launched numerous applications and appeals within the actions. Nearly all of them have been struck out or dismissed. Looking at the timescale, the first claim relied on by the Attorney issued by the first defendant was launched on 13th November 1995, and the most recent application made by him was dismissed on 28th June 2000. The first claim by the second defendant was issued on 2nd March 1994, and the most recent application made by him was dismissed on 8th March 2000. The Solicitor General gave his authority for the making of this application for civil proceedings orders on 30th March 2000 and the claim form was issued on 14th June 2000.
4. Section 42 of the Supreme Court Act 1981 provides, so far as material, as follows:
“(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 ...
the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order...
1(A) In this section
‘civil proceedings order’ means an order that -
(a) no civil proceedings shall without the leave of the High Court be instituted 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, in any civil proceedings instituted in any court by any person, without the leave of the High Court.
(2) An order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.
(3) Leave for the institution or continuance of, or for the making of an application in, any Civil proceedings by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application.
(4) No appeal shall lie from a decision of the High Court refusing leave required by virtue of this section.”
5. I turn to the chronology of events relied on by the Attorney General. Action number one was a claim issued by the second defendant, Glenford Green, against the People’s College of Tertiary Education. It was launched in the Nottingham County Court on 2nd March 1994. The complaint concerned, amongst other things, the college’s failure or refusal to grant a pass to the second defendant in relation to an examination undertaken in the academic year 1992/93. In the application lodged at court the second defendant stated as follows:
“I want to be compensated for a lost University Place, Unfair Treatment, Withholding my Mathematics Certificate, Access Certificate and Completing Course Under Tragic Circumstances. Failing to compensate I would like to be awarded my Access Course Certificate.
The grounds on which the Applicant claims to be entitled to the order are:-
Completed course under tragic circumstances - the treatment that was dished out was unjust. The confusion over my mathematics paper had left me in the dark, so I asked for permission to see my mathematics paper/results which they refused.”
6. This claim was struck out by DJ Cochrane on 11th May 1994 on the ground that it disclosed no reasonable course of action. However, something over two years later, on 23rd September 1996, the second defendant went to the court office, apparently to set down this action. He was then told it had been struck out. Thereafter, on 25th October 1996, the listing officer wrote to him enclosing a letter earlier written by the solicitors to the defendant college stating that HHJ Brunning had directed that a certain proposed hearing date should be vacated and that a directions appointment be fixed for 25th November 1996. That seems to have been a confusion. No procedural step has, in fact, been taken in action number one since it was struck out by DJ Cochrane on 11th May 1994. Some correspondence followed in late 1996 and 1997. The second defendant wrote letters complaining about the service provided by the Nottingham County Court. He wrote also to the Office for the Supervision of Solicitors complaining about the conduct of Messrs Eversheds.
7. I turn to action number two. This also was brought by the second defendant. The defendant to the proceedings was named as The Governing Body of the People’s College of Tertiary Education; effectively the same defendant as in action number one. The claim was issued on 22nd August 1994. It made allegations of racial discrimination arising out of the college’s failure or refusal to grant a pass in the same examination as had been referred to in action number one. A defence was filed and the matter went to trial. Judgment was given on 3rd July 1998 by HHJ MacDuff QC, who dismissed the claim. I should read some short extracts from the typed note of the judgment that is before us:
“This case turns upon the Plaintiff’s failure to achieve the necessary standard in mathematics. In his pleading, the Plaintiff recognises the importance of the mathematics course.”
8. Then the learned judge sets out quotations from the pleading. He continues thus:
“I make the following findings of fact. At the end of the academic year, the Plaintiff’s examination paper in mathematics was marked at 21 per cent. His course work was borderline, and was assessed at 50 per cent. Thus, the Plaintiff did not achieve the required standard in two respects. He did not achieve the minimum examination requirement of 40 per cent; nor did he achieve an overall average of 50 per cent. Along with other students (all on the Gateway Course) he was allowed to re-sit the examination a few weeks later. On this occasion, he achieved a mark of 35 per cent, which still fell below the required standard.
In fact there were 5 students, including the Plaintiff, who re-sat the mathematics examination. The Plaintiff was the only one to fail the examination on this second occasion.
It is the Plaintiff’s case that the Defendants should have used discretion and that he should have been deemed to have passed the mathematics course. He had undoubtedly suffered family bereavements in the course of the year, which had affected his attendance at college. The Defendants were aware of these bereavements.”
9. The learned judge gives some particulars of those tragic events and the judgment continues a few lines later:
“Uniquely the Defendants agreed to allow the Plaintiff to re-sit the examination for a second time at the end of the summer vacation in September 1993 and also to provide him with additional tuition over the summer vacation. A similar facility was provided for the Defendants’ [sic] brother, who was on a different course.”
10. On the next page:
“The Plaintiff told me that he failed to re-sit the examination in September because the Defendants consistently refused to inform him of the mark which he would need to achieve, in order to pass the examination. I reject that evidence...
In my judgment, the Plaintiff has deliberately sought to pretend that he did not understand the marking system. He sought to give the impression that he was told that the pass mark was 40 per cent and that later it was 50 per cent. In fact, I am quite satisfied that he was consistently told that the mathematics examination pass mark was 40 per cent but that the overall average pass mark was 50 per cent. He also claimed that he had been told that his examination mark was 38 per cent. I reject the Plaintiff’s evidence about this, and accept the evidence called on behalf of the Defendants.”
11. Then on page 8:
“In my judgment, the Plaintiff has patently failed to demonstrate that he was the victim of any discrimination. I am entirely satisfied that the College was sympathetic to the Plaintiff’s needs, and paid particular attention to the fact that he had suffered the two bereavements. When he arrived late for the first mathematics examination, he was permitted to start late, and was allowed extra time at the end of the examination. But, whatever other discretion the College may have had, it had no discretion to pretend that the Plaintiff had achieved results in excess of his actual achievements. To have done so would have defeated the whole object of the statutory requirement that entrants for the degree of Bachelor of Education should have achieved minimal standards in English and mathematics.
In the course of the trial I was able to witness for myself the Plaintiff’s undoubted blinkered belief that he had been the victim of discrimination. He failed to demonstrate that he was treated any differently from any other student. If there was any difference of treatment, it was in the fact that he was provided with additional tuition and was permitted to re-sit the examination for a second time.”
12. On 29th July 1998 the second defendant sought leave of the Court of Appeal to appeal against that judgment. On 14th June 1999 an application for an adjournment of the application for leave was dismissed. The substantive application also was dismissed and an order made for payment of the College’s costs.
13. Action number three was brought by both defendants against the Governing Body of Clarendon College. It was issued on 15th November 1995. The claim alleged discrimination on grounds of sex. The context was the defendant’s failure to pass a course in the academic year 1991/1992. A defence was filed in April 1996 and notice given of an application to strike out the claim on 22nd July 1996. That application came before Mr Recorder Waine on 16th August 1996. He struck the action out. I read this following passage from the transcript:
“What I have to consider against that factual background is the wording in particular of Section 76 of the Act which states that any claim under the Act, which is brought under Section 66(5) of the Act -- and there is no dispute that that is the appropriate section -- should be brought within a period of 8 months from the last act complained of. That would have given the Plaintiffs up until about February 1993 in which to bring the proceedings and, effectively, by not serving them until March 1996, nearly some 3 years has gone past up until that time and even some two-and-a-half years or so up to the time when the summons was issued. However, that time limit is not mandatory ....”
14. The learned recorder then sets out the material statutory provision. He continued:
“I have, I am afraid, absolutely no hesitation in saying that this is not a case in which my discretion should be exercised. It seems to me that if the Plaintiffs had a reasonable case, it is one that could have been investigated infinitely earlier than it was, that they had at least help and assistance from the Equal Opportunities Commission, they had solicitors on the scene back in June/July 1993 and although those dates would have put them out of time, nevertheless, it would have been infinitely closer to the time with which we are really concerned and when one looks at the matter as a whole, they have faced the problem which many litigants face of simply not being able to prove their case and that is not a problem which should be visited on the Defendants who have had to wait and are now in a position where the Defendants, in my opinion, properly say they would be highly prejudiced by any action being brought at this very late stage. Their problems are in contacting people who are on the course.”
15. The defendants sought leave of the Court of Appeal to appeal. That application was issued on 7th October 1996. It was refused by Brooke LJ on 26th February 1997. On 3rd March 1997 the Court of Appeal refused leave to present a petition to their Lordships’ house.
16. Action number four was brought by the second defendant against the Governing Body of the People’s College of Tertiary Education. The proceedings were issued on 18th April 1996. The second defendant alleged that he was the victim of racial discrimination. The context was the College’s failure or refusal to pass the second defendant on the Access Course in the academic year 1992/1993. The action was struck out by DJ Beale on 5th August 1996 and the second defendant was ordered to pay the College’s costs.
17. Action number five was brought by both defendants. The claim was for damages for professional negligence against the solicitors who had acted in action number two. The proceedings were started on 26th September 1996. At length, on 19th August 1998, HHJ MacDuff QC struck out the claim pursuant to order 13(5) of the County Court Rules. Orders for costs were made against both of these defendants. I should read this extract from the defendant’s solicitor’s skeleton submissions placed before the judge (there is no record or transcript of the judge’s own reasoning):
“2. The essence of the Plaintiff’s complaint is that had the Defendant firm acted differently they would have been awarded substantial damages in earlier litigation.
3. In Action Number NG 472856 [i.e. action number two] the First Plaintiff sued the People’s College alleging that he had been the victim of racial discrimination. Despite the complaints that are made of the Defendant Solicitors in this action the First Plaintiff’s action proceeded to Trial and Judgment was given ...
4. The First Plaintiff’s claim for damages for racial discrimination was dismissed. The Plaintiffs’ pleaded claim in this action (so far as the People’s College litigation is concerned) is accordingly worthless.
5. Furthermore, the implicit assertion in this action is that the Court should have decided the First Plaintiff’s action against the People’s College differently. This is a collateral attack on the final decision of a Court of competent jurisdiction and thus amounts to an abuse of process.”
18. Action number six was brought by the first defendant against the University of Derby. It was issued on 4th August 1997. By it the first defendant alleged a breach of contract constituted by the University’s failure or refusal to grant a Bachelor of Education degree at the University in 1995. Directions for a hearing were duly given. A defence was filed. There were certain adjournments, into whose precise details it is not necessary to go. Amended particulars of claim were served in late 1997. They were, in effect, fresh substitute pleadings. DJ Pollett made an order on 25th November 1997, adjourning the hearing for directions to a date in the January following and making orders relating to the reamended particulars of claim. At length, on 21st January 1998, DJ Cowling struck out the particulars of claim as disclosing no reasonable course of action. He ordered that the first defendant, Linbird Green, pay the University’s costs. There is a solicitor’s attendance note of the hearing on 21st January which contains this account of the District Judge’s’s reasoning:
“District Judge Cowling then stated that he had read the original Particulars of Claim and said that Mr Green wanted damages and an award of a degree of Bachelor of Education. He stated that Mr Green had been asked to file amended particulars stating why the University was in breach.
District Judge Cowling stated that he was not satisfied that Mr Green had set out the details of the contract alleged or how it had been broken. If Mr Green was not satisfied about the Bachelor of Education then it was a matter for an application of a judicial review to the High Court and not a matter for this court.
He therefore made an order that the Particulars of Claim be struck out under Order 13, rule 5 as disclosing no reasonable cause of action.”
19. The solicitor’s note then continues as follows:
“Mr Green’s brother then interrupted [I infer that the reference is to the other defendant before us, that is the second defendant]. He [that is the brother] stated that he was at the hearing to assist as a McKenzie friend. He complained that SLJ [that is the solicitor’s initials] had used a legal term, judicial review, which was a legal ploy to set a trap. He complained that Eversheds had not explained judicial review to his brother.
District Judge Cowling stated that, if Mr Green wants a judicial review, he needs to go to the High Court and he will have to obtain legal assistance to do that.
He then made an order for the Defendant’s costs.
Following the hearing Mr Glenford Green complained to SLJ that she had acted unprofessionally in raising judicial review which was a legal term. SLJ pointed out that it was a legal court.
Mr Glenford Green then stated that this was not the end of the matter and his brother was going to pursue it further. As he was leaving the waiting room, he made the comment that SLJ was a racist.”
20. At length, the costs ordered to be paid were taxed at something over £2,800. A statutory demand was issued based on the order for the costs, and on 30th October 1998 DDJ Allen dismissed an application to set aside the statutory demand. There followed, on 12th February 1999, a bankruptcy order made against the first defendant. On 19th July 1999 in the High Court Mr Registrar Jacques refused an application to extend time to apply to set aside the statutory demand. A notice of appeal was issued against that decision. Mr Peter Leaver QC, sitting as a Deputy High Court Judge, dismissed the appeal on 26th November 1999. Application was made to the Court of Appeal for permission to appeal on 28th June 2000. Aldous LJ refused that application. The first defendant neither attended nor was represented before him.
21. Action number seven was brought by the second defendant against the Labour Party. Proceedings were issued on a date in October 1997; it is not quite clear from the papers whether it was the 7th or 17th. The allegation was that the Labour Party was in breach of a duty owed by it to the second defendant to investigate the conduct of a certain Labour Party Local Councillor who was said to have assaulted the second defendant on 2nd May 1997. The claim was amended to add an allegation of racial discrimination. On 11th May 1998 DJ Oliver struck out the claim for breach of duty, but permitted the second defendant to reamend his claim under the Race Relations Act. As regards the claim for breach of duty, the District Judge on that occasion said this:
“By amendment Mr Green claims two matters:-
1. The Labour Party failed to investigate the conduct of a Mr Collins who Mr Green alleges assaulted him at an Election count on 2nd May 1997. At the time, Mr Green was a Liberal Democrat candidate and Mr Collins was the successful Labour Party candidate. One of the matters that Mr Green relies on at the time of the alleged assault is that Mr Collins was acting as agent or member of The Labour Party although the claim is not in respect of the assault directly. If Mr Collins was not agent for or acting on behalf of The Labour Party, whether the assault occurred at all is not a matter for the Labour Party but purely personal.
There is no evidence or pleading to show that Mr Collins was at the time within the employment of the Labour Party or acting in a capacity for which the Labour Party was principal or such that the Labour Party was vicariously liable for his acts. I hasten to remind myself that this is a legalistic and not a moral or political matter. So Mr Green will have to set up a cause of action to plead that relationship between Mr Collins and the Labour Party that gave rise to responsibility on the part of The Labour Party. He has not done so. I mention clearly that if the Labour Party is not responsible for the conduct of Mr Collins, the question of an investigation would not arise. The primary relationship must be established to show causation. That link is not pleaded and there is nothing before the Court to suggest that such a link exists.
Further, Mr Green says a duty of care in any event is owed by the Labour Party because he is a member of the Liberal Democrats with whom the Labour Party developed a close working relationship and a joint cabinet sub-committee. That argument in any event fails. That joint arrangement could not have been in existence but apart from that, other than the fact that both Mr Collins and Mr Green were politicians, they had no duty of care to either political party. Because each was a member, it did not impose a duty on either. I find that there was an insufficient nexus for a duty of care to exist.”
22. The second defendant amended his claim in June 1998, but on 8th July 1998 DJ Oliver stuck out the balance of the claim as disclosing no cause of action and ordered that the second defendant pay The Labour Party’s costs. He said this, after setting out some history of the matter:
“Given that history, the Plaintiff then alleges that the Defendant unlawfully discriminated against him under RRA [that is of course the Race Relations Act] and he suffered direct discrimination i.e. less favourable treatment.
Of the Particulars the only one that could possibly be relevant is that the Labour Party has not investigated the Plaintiff’s complaint. That may or may not be so.
I indicated on the last occasion that nothing was disclosed in the pleadings to date to show or to suggest any relationship giving rise to a duty of care or bringing into play section 1(1)(a) RRA.
The remainder of the Particulars deal only with the advice to the Plaintiff which even if true are wholly irrelevant as to whether there was discrimination under RRA.
I remind myself it is not appropriate to strike out purely for inadequacy or because of little prospect of success. I need to be satisfied of the absence of a right of action.
For the various reasons given in my Judgment of 11th May, 1998 I find an absence of a right of action. Accordingly, I order the Plaintiff’s claim be struck out.”
23. At length, in September 1998, HHJ Brunning dismissed an appeal against that decision and made a further order for costs. He also dismissed an application for leave to appeal against his own decision. On 30th April 1999 Ward LJ and Schiemann LJ refused permission to appeal to the Court of Appeal. The costs were, at length, taxed at a little over £10,000. On 30th August 1992 the second defendant made an application for an order that the order for payment of the taxed costs be set aside on the ground that he was seeking leave to appeal to their Lordships’ house. That was refused and an appeal against the refusal was also dismissed.
24. Action number eight was brought by the second defendant together with the defendant’s mother, Pearly Louise Green. They sued the Nottingham City Council by a claim issued on 24th October 1997. The allegation was that the Council’s housing department had failed to protect them from antisocial neighbours. An amendment was put in to allege racial discrimination. A defence was filed. Further particular of the particulars of claim were given. A witness statement made by the second defendant was served. On 14th July 1998, upon the application of the second defendant and his mother, HHJ Heald vacated a trial date; the case having been listed for trial on 14th July 1998. It appears from the Attorney General’s evidence that no further steps have been taken in that action.
25. Action number nine was brought by both defendants against the Governing Body of Clarendon College. The proceedings were issued on 24th August 1997. The claim was based on the College’s refusal to grant them passes on the Access Course in the academic year 1991/1992 and also in relation to a university place which had been refused. On 5th November 1997 a defence was put in alleging inter alia that the defendants had already brought proceedings which had been struck out in relation to the same matter, and indeed that an application for leave to appeal to the Court of Appeal had been dismissed by that court as had been an application for leave to present a petition to their Lordships’ house. The earlier action referred to was action number three, which I have described.
26. Action number nine was struck out as an abuse of process by DJ Oliver on 2nd November 1998. He made orders for costs against the defendant. HHJ Brunning dismissed their application dated 14th December 1998 and dismissed their appeal itself on 2nd December 1999. On 20th January 2000 the Court of Appeal refused the second defendant permission to appeal against the decision of HHJ Brunning, and a little later, on 8th February, refused the second defendant’s application for permission to petition their Lordships’ house.
27. Action number ten was brought by the first defendant against the University of Derby. It was issued on 6th February 1998. The allegation was breach of contract and racial discrimination in respect of the first defendant’s failure upon a part time Bachelor of Law course in the academic year 1996/1997. The defence, filed on 24th February 1998, asserted that the first defendant had, in truth, failed the court. He had declined an offer that had been given to undertake a re-sit. It was alleged that he was a vexatious litigant, reference being made to action number six brought against the University, which had been struck out on 24th January 1998.
28. Action number ten was struck out by DDJ Cowling on 12th June 1998. Notice of application for leave to appeal was given. The appeal was dismissed on 16th July 1998. An order for costs was made against the first defendant. He issued a notice of application for leave to appeal against HHJ Brunning’s order. That leave was refused by HHJ Brunning on 10th September 1998. The Court of Appeal refused permission to appeal against the order of HHJ Brunning on 5th May 1999 and refused also an application for permission to present a petition to their Lordships’ house.
29. The first defendant was also the claimant in action number eleven. That, again, was brought against the University of Derby. It was issued on 17th February 1998, some 11 days after action number ten. The claim was said to be for breach of contract and negligence in respect of the first defendant’s failure upon the Bachelor of Education course in 1995. This was simply nothing more nor less than an attempt to relitigate action number six. It was struck out on 29th April 1998. An appeal was dismissed against that order in July 1998. Permission to appeal to the Court of Appeal was refused by HHJ MacDuff QC on 10th August 1998 and refused by the Court of Appeal itself on 5th May 1999. On 10th June 1999 the Court of Appeal refused permission to present a petition to the House of Lords.
30. Action number twelve was brought by the first defendant against Messrs Eversheds. It was said that the first defendant had been a victim of racial discrimination at Eversheds’ hands in respect of the manner in which Eversheds had represented the University of Derby in the various proceedings between 1995 and 1998. The action was struck out by DJ Beale on 1st September 1998 as disclosing no cause of action and as frivolous, vexatious and an abuse of the process of the court.
31. The last action was number thirteen. That was brought by the first defendant against a company by the name of BTCV Enterprises Ltd. It was issued on 17th February 1998, less than a month after a decision made in the Industrial Tribunal in which the first defendant had lost his application against the same company for alleged racial discrimination. In the proceedings at the County Court he made what was, in truth, the same allegation of racial discrimination, the context of his having been dismissed by BTCV Enterprises. In September 1998 HHJ MacDuff QC made an order that a preliminary issue be tried as to whether an issue estoppel arose having regard to the decision of the Tribunal, but in fact, on 12th February 1999, HHJ Brunning ordered that the claim be struck out and that the first defendant pay the company’s costs.
32. That then describes the litigation upon which the Attorney General relies in support of this allegation. It is convenient to cite two short passages from the judgment of Lord Bingham, Chief Justice, as he then was, in Attorney-General v Barker [2000] 1 FLR 759. These passages, with great deference, constitute a useful summary of the nature of vexatious proceedings within the context of section 42. Lord Bingham said this at 764 C to D:
“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.”
33. Then at 764 G:
“From extensive experience of dealing with applications under s 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 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.”
34. I said earlier that the second defendant, Mr Glenford Green put in a skeleton argument on behalf of himself and his brother. The first part of that document is headed “Evidence of Character”. In it he asserts that he himself is a member of the Law Society, a trainee solicitor and was a candidate for the Liberal Democrats at the Nottingham City Council elections in May 1997 and 2000. I may omit some other details given. As regards his brother, he states that Mr Linbird Green is an active member of Nottingham’s community and was awarded a certificate from Nottingham City Council for his voluntary service to the community. He, that is Mr Linbird Green, is said at present to be practising counselling with mental health patients and young offenders.
35. Then under a heading “Right To A Fair Trial”:
“5. The Court service provides an important service to members of the public. Mr Linbird Green and Mr Glenford Green were treated unfairly at the Nottingham county court. The same judges were used on a number of occasions at the court hearings. This had the effect of bias and prejudice. Mr Linbird Green and Mr Glenford Green were clearly at a disadvantage.
6. Under the Human Rights Act 1998 Article 6, everyone is entitled to a fair and public hearing within reasonable time by an independent and impartial tribunal established by law.”
36. Then finally under “Conclusion” these words appear:
“Mr Linbird Green and Mr Glenford Green are not vexatious litigants. They have been denied real and effective access to the courts.”
37. In making supplementary submissions before us, Mr Glenford Green asserted that there were difficulties facing a black person who sought legal advice. He said that his experiences of litigation have led him into the legal profession. He said that there was something like a conspiracy against himself and his brother in Nottingham, the context of that assertion was presumably the very litigation upon which the Attorney General relies and the suggestion that, in some way, the same judges have been deliberately selective so as to make adverse decisions against him and his brother.
38. In my judgment, the history which I have recounted establishes beyond the possibility of any reasonable doubt that these defendants have instituted vexatious proceedings, that they have done so habitually and persistently and without any reasonable grounds. They have also made vexatious applications in civil proceedings. That being so, the court, of course, is not obliged to make an order under section 42. There is a discretion whether to do so and a discretion also (see subsection (2)) whether to make an order for a specified period or indefinitely. It is my lamentable duty to make it plain that everything I have seen and heard and read about this case demonstrates to my satisfaction that the defendants are entirely blind to the vexatious nature of the process which they have repeatedly and persistently instituted. There is nothing to show there is any change of heart or any determination to halt these undoubtedly vexatious proceedings.
39. For my part, therefore, I would think it right to make the order sought by the Attorney General without limit of time.
40. MR JUSTICE POOLE: I agree.
41. MR BISHOP: My Lord, there is no application for costs.
42. LORD JUSTICE LAWS: Thank you very much. There is nothing else to say, I think, Mr Bishop.
43. MR GREEN: Excuse me, sir, am I allowed to speak before this hearing closes?
44. LORD JUSTICE LAWS: Stand up, Mr Green. What do you want to say?
45. MR GREEN: I am the person here and I was ignored and you spoke to Mark Bishop. I was wondering --
46. LORD JUSTICE LAWS: What do you want to say
47. MR GREEN: I was asking, am I allowed to speak?
48. LORD JUSTICE LAWS: Well, we have given our judgments. The case is over so far as this court is concerned. What do you want to say?
49. MR GREEN: Well, I thought that was a bit unusual because you only spoke to Mark Bishop and you just ignored me.
50. LORD JUSTICE LAWS: Well, Mr Bishop was indicating that I should make a correction in the judgment, which I will certainly do.
51. MR GREEN: I think I will be making a complaint about that.
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