Wednesday, 7^th March 2001

1. LORD JUSTICE LATHAM:This is an application by the Attorney-General for a civil proceedings order pursuant to section 42 of the Supreme Court Act 1981 (as amended) that:

2. The provisions of section 42 are as follows:

3. In these proceedings, as I have indicated, the only order that is asked for is in relation to civil proceedings and is based on the Attorney-General’s submissions that, in relation to proceedings since 1992, the defendant has instituted vexatious civil proceedings and made vexatious applications.

4. The issues which the court must consider on an application such as this are firstly whether the court is satisfied that the defendant has habitually and persistently and without reasonable grounds instituted vexatious proceedings or applications, and secondly, if so, should this court exercise its discretion to make a civil proceedings order. In determining these issues the court will have regard to the number of applications and actions, their general character, the result of the actions and applications, the whole history of the matter, and what can be gleaned from the surrounding circumstances as to the motive of the defendant and the manner in which the actions have been conducted.

5. The history of the proceedings relied upon by the Attorney-General is set out in a witness statement of Roger Lutterodt, and exhibits thereto. Generally, what can be seen from those documents is that Mr Hellyer has been involved in some 18 actions, 11 of them initiated by him, and that during the course of those actions there have been some 50 or so applications which have been instituted by him.

6. The proceedings all arise out of two basic pieces of litigation. First was an action which was commenced in 1992 by means of a County Court summons, issued by Valewood House Ltd against the defendant, for monies due in relation to nursing home fees of Mr Hellyer’s mother. The sum claimed was £6,665.62. An order was made for him to pay those fees and the appeal against the order in the small claims court was dismissed by the circuit judge on 12^th February 1993. The defendant made an application for leave to appeal. The matter came before the Court of Appeal and the application was dismissed with costs. In January 1995, on the basis of that judgment, the defendant was adjudged bankrupt, although no trustee in bankruptcy as I understand it was then appointed, it not being clear whether there were any assets over which the trustee could, in fact, exercise jurisdiction.

7. During 1995, however, divorce proceedings took place between the defendant and his then wife. There were bitterly contested ancillary relief proceedings, which extended over a substantial period of time, in which the wife had sought to discover the true extent of the defendant’s assets. As a result of those inquiries, and after hearing the evidence produced by those inquiries, His Honour Judge Cook, on 18th December 1995, held that the defendant was the beneficial owner of very substantial assets indeed, particularly property and monies in the name of his son and the shares in a company known as Epitome Ltd. The result of his findings was that he ordered that the defendant should pay to his wife a lump sum of £450,000. In the course of that judgment, His Honour Judge Cook concluded that he could not believe the evidence of the defendant, and that the defendant had engaged in a deliberate attempt to hide his assets so as to prevent either creditors or his wife from being able to discover his true wealth.

8. That decision of His Honour Judge Cook was the subject-matter of an appeal, which was dismissed on 19^th July 1996 by the Court of Appeal, recording as it did that the Judge’s judgment was based essentially on his conclusions of fact in relation to the truthfulness of the defendant. As a consequence of the conclusions of His Honour Judge Cook, a trustee in bankruptcy was appointed under the bankruptcy proceedings; and that trustee sought declaratory relief in relation to the assets which His Honour Judge Cook had found to be the defendant’s assets. That order was eventually made by Mr Registrar Baister on 19^th December 1996. This was also the subject-matter of an appeal to the Court of Appeal, which dismissed the appeal on 25^th November 1997.

9. Since then, as can be seen from the witness statement of Mr Lutterodt and the schedule which has been helpfully drafted by Ms Smith appearing for the Attorney-General, the defendant has repeatedly sought to bring either proceedings or applications, the purpose of which have been to undermine the two findings made, firstly, in the Family Division, and secondly, in the bankruptcy proceedings. The defendant, in relation to the bankruptcy proceedings, has sought to annul the bankruptcy order of 19^th January 1995 at least eight times; he has sought to appeal or annul the order of Mr Registrar Baister of 19^th December 1996 seven times; he has applied to appeal or annul the judgment of the court relating to the underlying debt in the bankruptcy proceedings on three occasions; and he has sought to annul or appeal the judgment of His Honour Judge Cook on at least three occasions.

10. Repeatedly, the court has had to say to the defendant that he is simply seeking to re-litigate matters which have been the subject-matter of final decisions of courts of full jurisdiction in relation to those matters. In respect of both the decision of His Honour Judge Cook and of Mr Registrar Baister, they have repeatedly said that those orders were fully justified on the material before the court.

11. He has, in addition to the proceedings to which I have generally referred which have sought to attack the orders themselves, also sought to attack the orders by a side-wind in proceedings brought, firstly, in the Guildford County Court against Valewood House Ltd, claiming that he had in fact paid the money. He has made an alternative claim against a Mrs Blowes for theft of money. I will return to those matters shortly later. He also issued a summons against Valewood House Ltd, claiming that he had been overcharged nursing home fees; and more recently he has issued proceedings against Her Majesty’s Land Registry in which he seeks, clearly, to have re-litigated the ownership of the land of which he was declared to have been the owner. All that is material which, in my judgment, without more would satisfy me that the defendant has, in the words of the Act:

12. But the matter does not stop there. The position, at present, in the application today is that we were confronted first with an application by the defendant to adjourn. The application to adjourn when analysed was in order to enable him to be able, once again, to re-litigate the underlying actions, that is the action which underpinned the bankruptcy, and secondly, the findings of His Honour Judge Cook. His application and his case today have been supported by an affidavit in which he sets out his account of the background to these proceedings. It is plain from reading that affidavit that he is determined that the courts should ultimately accept his account of the matter.

13. As far as the nursing home fees are concerned, he sets out an account of having fully paid the fees, but that either because the nursing home owner is being dishonest or because of dishonesty of someone who was employed by the nursing home, money which he handed over has not been recorded properly, to his credit, as having discharged his debt to the nursing home in relation to his mother’s care. Secondly, he continues to assert that the decision of His Honour Judge Cook is based on a complete misunderstanding of the true picture, that there are documents which clearly show that he was not the owner of the properties of which His Honour Judge Cook concluded that he was the owner; that the material upon which His Honour Judge Cook relied included documents which were forgeries; and that in those circumstances the courts have essentially been misled into coming to wrong conclusions of fact.

14. In his submissions, he made it plain to us that he considered that he had, to use his own words, “just got to win”. For all those reasons, it seems to me that the case of the Attorney General has been fully made out.

15. But in addition to the material provided by the defendant himself, we were also provided with a 70-page document headed “skeleton argument” which had been prepared, it now appears, by the defendant’s Mackenzie Friend, which sets out a number of issues which he says should be resolved. Both of us have read that document.

16. The first issue which is raised is whether or not either of us is disqualified from hearing the claimant’s application. I indicated during the course of the hearing that I had indeed on occasions been instructed on behalf of Her Majesty’s Government and the Attorney General, but in circumstances which did not seem to me to give rise to any question of bias, whether actual bias or any appearance of bias.

17. The second issue raises the question of whether the defendant has satisfied the criteria for the making of a civil proceedings order. In other words, has he been habitually and persistently and without any reasonable ground instituting vexatious civil proceedings and applications. I have already given my answer to that issue.

18. The next issue is whether or not legal proceedings that are still ongoing should be taken into account. The answer is that in my judgment they should, and that the order asked for by the Attorney-General properly takes those proceedings into account.

19. The next issue is whether or not we should take into account, as part of the background, legal proceedings in the Isle of Man. As will have been noticed, I have not referred in my judgment to any legal proceedings in the Isle of Man; but it is right to say that there are legal proceedings in the Isle of Man referred to in the papers. They were perfectly properly part of the background enabling this court to come to a proper conclusion on the main issue, as to whether or not the defendant has habitually and persistently instituted vexatious proceedings, as it provides some assistance in deciding the extent to which the proceedings in this country can properly be regarded as being pursued reasonably.

20. The next issue which is raised is the question of whether or not bankruptcy proceedings are civil proceedings. In my judgment they are.

21. The next issue is that it is suggested that if there was a bench memorandum then this court should disclose it to the defendant. The answer to that is that whatever may be the position as to the need for a court to disclose such a memorandum, there is none in this case.

22. The next issue is the length and proportionality of a civil proceedings order. I shall return to that when I consider what the appropriate order is against the background and the findings that we have made.

23. The next issue which is raised is that the court’s attention is drawn to the fact that there have in fact been, in relation to the defendant, two Grepe v Loam orders. Those orders have been made in the bankruptcy proceedings. They do not appear to have had any significant effect on the defendant’s activities. Whilst clearly we must consider, when deciding whether or not to make an order under section 42, the appropriateness of a further or further Grepe v Loam orders, nonetheless that is the extent to which that particular issue is relevant today.

24. Finally, it is submitted that section 42 may not be compatible with the Human Rights Act 1998. Reference is made to Article 6 and the right, effectively, of a person to have access to the courts. The first point to make, of course, is that an order under section 42 does not bar the defendant from having access to the courts. It imposes a procedural restriction upon him which, in my judgment, is entirely proportionate in that this court, as is any court, is entitled to control its proceedings to ensure that they are not being abused. The Court of Appeal considered this issue in the case of Her Majesty’s Attorney-General v Geoffrey Arnold Wheen. The judgment was given on 7^th December 2000 in the context of an application made by the Attorney-General under section 33 of the Employment Tribunal’s Act 1996, which is the equivalent provision relating to employment tribunal proceedings. The Court of Appeal concluded, as I have, that there was no conflict between the provisions of section 42 and Article 6 of the European Convention on Human Rights.

25. So I return to the question of whether or not the underlying facts, having been properly established in my judgment, provide a proper basis upon which this court should make the order asked, which is in broad terms an indeterminate order. I have no doubt, against the background that we have heard and in the light of the material that has been provided by the defendant himself, both in his affidavit, in his witness statement and in his submissions, that this is a case in which an order should be made in the terms asked for by the Attorney-General. For those reasons I would grant this application. It seems to me that that is an appropriate sanction to impose in the light of all the facts to which I have referred.