IN THE HIGH COURT OF JUSTICE CO/1860/99

Royal Courts of Justice

The Strand

London

Tuesday 15 February 2000

B e f o r e:

(Lord Bingham of Cornhill)

and

B E T W E E N:

HER MAJESTY’S ATTORNEY GENERAL Applicant

- v -

ARTHUR OAKES Respondent

Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

Telephone No: 071-421 4040

(Official Shorthand Writers to the Court)

MR B CARR (instructed by The Treasury Solicitor) appeared on behalf

of THE APPLICANT

THE RESPONDENT appeared in person

J U D G M E N T

(As Approved by the Court)

1. THE LORD CHIEF JUSTICE: I will ask Mr Justice Klevan to give the first judgment.

2. MR JUSTICE KLEVAN: The applicant seeks a civil proceedings order in respect of Arthur Oakes, pursuant to section 42 of the Supreme Court Act 1981. Three affidavits have been sworn by Rodger Lutterodt in support of the application. The applicant contends that the respondent exhibits a refusal to accept the decisions of the court and it is likely that he will continue to pursue vexatious litigation.

3. Section 42 of the Supreme Court Act 1981 reads as follows:

4. There is one point of agreement between the applicant and the respondent: that the respondent is a prolific litigator.

5. Matters began ten years ago. A bankruptcy order was made against Mr Oakes in May 1990. As a result of that bankruptcy, repayments due on a mortgage in relation to two of his properties, both of them in Putney, one in Tintern Close and the other in Shelburne Court, fell into arrears. The building societies which had advanced money for the purpose of the purchase of those properties sought possession of them in order to realise their security.

6. In February 1993 a company known as Townsend Investments Incorporated was set up by the respondent. It was incorporated in Liberia. Shortly after his discharge from bankruptcy and in order to avoid pressure being applied by the building society, the respondent took steps aimed at the purchase of the two properties by Townsend Investments. This was achieved in the autumn of 1993. In March 1994 a company known as Commercial Acceptances Ltd was approached on behalf of Townsend Investments with a view to securing a loan of £150,000. This was done, but with the security being obtained by way of charges over the Putney properties. Due to the default in the repayments under the loan to Townsend Investments, Commercial Acceptances began proceedings against Townsend Investments and Mr Oakes and others, seeking the repayment of the loan and possession of the Putney properties. A writ was issued in October 1994. Subsequent to that action being commenced, the respondent began a series of actions against parties involved in the original loan transaction between Townsend Investments and Commercial Acceptances. Claims were brought in particular against a firm of solicitors named Malkins who had acted for Townsend Investments. Malkins were later to merge with Howard Kennedy, and a subsequent action was brought by Mr Oakes against the new firm.

7. In the meantime, the claim by Commercial Acceptances against Townsend Investments and the respondent continued and came to trial in June 1999. The claimants were successful. The respondent was ordered to give up possession of the Putney properties. The respondent attempted, without success, to appeal against the first instance judgment both to the Court of Appeal and to the House of Lords. His attempts to obtain a stay of execution were unsuccessful and eventually a Grepe v Loam order was made against him in August 1999.

8. The bankruptcy order of May 1990 was discharged in May 1993. The respondent was nevertheless required to attend for examination in relation to his assets in January 1995. He did not attend and an order was made for his arrest. The respondent unsuccessfully contested the orders made. Having done so, he turned his attentions to the trustee in bankruptcy, Mr Simms, and to solicitors who had acted on behalf of the trustee, Mr Charles Darby of Edge & Ellison. Proceedings were begun against the trustee and the solicitors in September 1995. The action was dismissed in March 1997 when the respondent failed to produce any evidence. A further writ based on the same cause of action was nevertheless issued by the respondent against Edge & Ellison in November 1997. In dismissing that action in November 1997, Rimer J said as follows:

9. “Mr Oakes is well known to the judges of the Chancery Division. He was adjudicated bankrupt on 19 May 1990 and Francis Simms was appointed his trustee. He obtained his discharge on 18 May 1993 and since then has commenced a number of actions against a variety of defendants, usually claiming by way of relief substantial sums of money. The claims he brings are not always well judged; and I myself have struck out, or upheld the striking out of three of them.”

10. The other area of the respondent’s activities as a litigant stems from a business deal with the respondent and a Mr Colocotronis. The respondent contended that he had reached an agreement with Mr Colocotronis under which the respondent was to receive a one-third share of the proceeds of settlement of a claim involving a company known as Catu Containers SA. The respondent contends that the claim was settled for $3 million and that he was therefore entitled to $1 million. The respondent has attempted to litigate this dispute either by substantive claims against Mr Colocotronis himself or by associated litigation against solicitors who he regards as being implicated in Mr Colocotronis’ alleged fraud. He has done this on no fewer than 12 occasions. On each and every occasion he has been unsuccessful. I shall deal with a number of those actions in a little more detail later in this judgment.

11. The respondent has also brought claims against a number of solicitors who were said to have been the cause of him sustaining losses at the hands of Mr Colocotronis. In particular Mr Oakes has alleged that Stephen Mitchell and Company and Kingsley Napley have both been involved in the unlawful removal from the jurisdiction of funds said to have been the subject of a Mareva injunction. Each time the argument has been advanced, it has been unsuccessful.

12. Following the dismissal of two of the proceedings, Kingsley Napley, the solicitor defendants in each of the actions, sought to recover their costs. A statutory demand was served in March 1998 for £8,076 and some pence, being the amount of the taxed costs. As well as attempting, unsuccessfully, to have the demand set aside, the respondent’s reaction was to issue his own statutory demand in the sum of £2.5 million against Barry Samuels, a solicitor with Kingsley Napley. When bankruptcy proceedings were ultimately commenced they were resisted by the respondent on the basis yet again of the alleged fraud of Kingsley Napley. Again the respondent made no progress with his allegations and a bankruptcy order was made in July 1998. The respondent has attempted to proceed, it would appear, down every avenue of appeal that could be open to him. That is the background of this matter.

13. Mr Carr, on behalf of the Attorney General, argues that the matters reveal four categories: (1) fraudulent mortgages; (2) the bankruptcy; (3) the Colocotronis business transaction; and (4) the statutory demands.

14. The fraudulent mortgages

15. On 27 November 1995 Mr Oakes issued a claim in the High Court against Messrs Malkins, the solicitors. The claim was essentially for the sum of £185,000, which Mr Oakes claimed was the full redemption cost of the mortgage on the property known as 11 Tintern Close. The statement of claim identified the respondent as being the sole director and sole shareholder of a Liberian registered company, Townsend Investments Inc, and claimed that Townsend assigned to the respondent rights to pursue an action against Malkins for alleged losses incurred by Townsend by the action of the defendant. The statement of claim alleged that Malkins were party to a fraudulent mortgage in relation to a property occupied by the respondent and his family, as well as another property in the same area. The two properties were 11 Tintern Close and 37 Shelburne Court. Malkins filed a defence on 22 January, denying liability. No steps have been taken in relation to that action.

16. Mr Oakes duplicated that very action in a further claim against Howard Kennedy. It was a claim for £550,000. Again it was brought against his solicitors acting in relation to the mortgage of the properties at Tintern Close and Shelburne Court. It is to all intents and purposes the same sort of action and a duplicate of the action I have so recently outlined.

17. The Bankruptcy

18. Mr Oakes issued proceedings against Charles Darby, Edge & Ellison and Francis Simms, alleging, amongst other things, malicious institutional proceedings leading to wrongful arrest, malicious bankruptcy proceedings and an abuse of the process of the court. Mr Oakes set his losses resulting from the arrest at £7 million for past and future loss of earnings. The matter eventually went to trial on 10 March 1997. Mr Oakes called no evidence of loss and the judge said:

19. “You claim you have suffered a £7 million loss. That is absolutely hopeless in this case because there is absolutely no evidence that you have suffered any loss at all.”

20. Mr Oakes invited the judge to dismiss the action, which he did. Mr Oakes then appealed against the order on 14 March 1997. His claim was struck out on 12 December 1997.

21. On 3 August 1997 Mr Oakes sought to reopen the issue by way of fresh proceedings in the High Court, alleging that Messrs Edge & Ellison, who were the legal advisers to his trustee in bankruptcy, had acted on a conditional fee basis which, he alleged, was illegal and would entitle him to £2 million. The claim was stuck out on Messrs Edge & Ellison’s application on 19 August 1997, with costs. The appeal of that order was dismissed, with indemnity costs, by Rimer J.

22. The Colocotronis business transactions

23. On 15 June 1995 Mr Oakes issued a writ against Mr Colocotronis and Park Finance, claiming $3 million with interest. That claim was dismissed on 18 August 1995 and Mr Oakes was ordered to pay the defendant’s costs. His appeal was subsequently dismissed.On 14 September 1995 Mr Oakes and Mr Michael Doidge issued a writ in the High Court against a number of defendants, Mr Colocotronis and three others, including Stephen Mitchell. The claim was for $3 million, plus interest, plus damages. The claim was struck out by Rimer J as an abuse of the court’s process. Leave to appeal against the decision to the Court of Appeal was refused on 22 February 1996. Costs were awarded against Mr Oakes.

24. On 29 October 1996 Mr Oakes issued a further writ in the High Court against the defendant Colocotronis, claiming the sum of $1 million, representing one-third of the $3 million settlement of 3 April 1987. He also claimed in the alternative £2 million against Mr Colocotronis. The application was struck out by Lloyd J on 14 November 1996. Mr Oakes was ordered to pay the defendant’s costs on an indemnity basis.

25. On 3 April 1997, in an action by Mr Oakes against Barry Samuels and Kingsley Napley, Mr Oakes contended that there had been an illegal conditional fee arrangement and that the defendants conducted malicious proceedings. Whilst the respondent purported to enter default judgment against the defendant in this action, it was set aside by the court by an order dated 18 April 1998. At the same time the action was struck out by the order of Deputy Master Litchfield on the basis that the claim disclosed no reasonable cause of action against either of the two defendants. Again the respondent was ordered to pay the costs of the action.

26. The respondent appealed against the order of the Deputy Master and he came before His Honour Judge Geddes on 8 May 1997. The appeal was dismissed. The order of His Honour Judge Geddes was in turn appealed to the Court of Appeal. That appeal was unsuccessful, leave to appeal having been refused by order of 1 July 1998. The costs of Mr Samuels and Kingsley Napley in the action brought against them were taxed in the sum of £7,285.49.

27. On 3 April Mr Oakes issued another action and started proceedings against Mr Colocotronis, claiming again the sum of £1 million with interest, and in the alternative £2 million. The striking out application was adjourned at the defendant’s request on 3 April 1999.

28. On 2 June 1997 Mr Oakes began another set of proceedings. He issued a writ in the High Court against Mr Burton, a solicitor, and Messrs Constant and Constant, a firm of solicitors, claiming that the defendants had again issued malicious proceedings, abused the process of the court, and worked on a conditional fee basis. Mr Oakes claimed damages of £100,000. This claim was dismissed by Chadwick J on 26 June 1997.

29. Mr Oakes began a further action on 10 November 1997. The defendants again were Mr Colocotronis and others. He claimed again the sum of £1 million with interest, or £2 million in the alternative. On 3 April 1998 Rimer J dismissed this claim and ordered Mr Oakes to pay the defendants’ costs.

30. Mr Oakes continued his litigation. On 4 November 1997 he issued a writ against Messrs Stephen Mitchell and Company, claiming the sum of £2.35 million. Master Dyson this time struck out the claim on 25 February 1998, describing it as being frivolous, vexatious and an abuse of the process of the court. Mr Oakes appealed against the order of Master Dyson. The appeal came before Rattee J. In dismissing the appeal Rattee J commented:

31. “There really has got to be an end to hopeless applications.”

32. There were other actions against Mr Colocotronis, but that recital thus far supplies the detail in regard to Mr Oakes and Mr Colocotronis.

33. The Statutory Demands

34. The respondent failed to pay the awards of costs that had been made against him. On 19 March 1998 a statutory demand was completed in relation to the sum of £8,076.36 owing in the two actions. The demand was served on the respondent on 6 April 1998. His response was on 20 April to serve a statutory demand on Mr Samuels in the sum of £2.35 million, and on 24 April to apply to have set aside the statutory demand which had been served on him. Mr Registrar Baister, on 20 May 1998, set aside the statutory demand made by Mr Oakes. Mr Oakes then reported the registrar to the Vice Chancellor, who rejected the complaint that Mr Oakes had made against the registrar as “groundless”. The complaint centred on Mr Oakes alleging that the registrar had been both incompetent and cavalier in his attitude. He also appealed against the registrar’s decision refusing to set aside the demand which had been served on him as well the decision to set aside the demand which he had served. Both matters came before Lightman J. The respondent was unsuccessful in both matters. His statutory demand against Mr Samuels remained set aside and the statutory demand served on him remained in place.

35. Following the decision of 24 April not to set aside the statutory demand which had been served on the respondent, Mr Registrar Baister allowed Kingsley Napley to present a bankruptcy petition against the respondent. Following the decisions taken by Lightman J on 24 June 1998, the respondent then tried to take the matters to the Court of Appeal. On 1 July 1998, as well as dealing with the respondent’s application for leave to appeal against the dismissal, the Court of Appeal was asked to consider an application by the respondent for a stay of the bankruptcy proceedings which were proceeding against him. They refused that application. On the afternoon of 1 July 1998 the respondent was declared bankrupt by order of Mr Registrar Simmonds. He appealed against the bankruptcy order on 13 July 1998 and issued a series of applications and motions. Matters in relation to the bankruptcy ultimately came before Neuberger J on 20 October 1998. On that date he made orders dismissing applications made by Mr Oakes seeking relief against Barry Samuels, Stephen Mitchell and Anthony Burton, setting aside a subpoena dated 11 June 1998, which the respondent had obtained on 11 June against Mr Samuels, Mr Mitchell and Mr Georgiadis, and dismissing and striking out as an abuse of the process of the court a notice of motion issued by the respondent on 25 July 1998. He made a further order for costs against the respondent in the sum of £7,500 and he dismissed a motion issued by the respondent on 23 July, seeking disciplinary action under the Solicitors Act against two members of the Bar. The respondent applied on 23 October 1998 for leave to appeal against the decisions of Neuberger J. The application was refused by the Court of Appeal on 6 November 1998. Further recital of the many actions is not required.

36. Mr Carr, on behalf of the Attorney General, submits that, in the light of that recital of the litigation, Mr Oakes is not only a prolific litigator but he is a vexatious one. Mr Carr reminded the court that 19 of the actions commenced by Mr Oakes have been struck out and that only the order that the Attorney General seeks will prevent Mr Oakes continuing as before.

37. Mr Oakes has submitted a 60-page handwritten skeleton argument. Yesterday, beginning before the short adjournment, he developed his argument and he continued for the whole of yesterday afternoon. I have read and considered his bundle of documents in conjunction with the bundles prepared by the applicant. He does not disagree with the four categories as outlined by Mr Carr. He advanced arguments in relation to each category. Descending to the particulars of those arguments is of little or no assistance. In general terms Mr Oakes asserts that he had good cause for each piece of litigation; that there is an on-going action against Mr Colocotronis; and that a number of solicitors have been dishonest or fraudulent in dealing with the various pieces of litigation and have taken fees on an illegal basis and have been guilty of contempt. He further argued that many of the judges before whom he has appeared have been tainted by bias against him and that he has not been allowed to develop his arguments. Finally, he argued that he cannot be described and should not be described as a vexatious litigant. Each action he has brought, he submits, has been proper and necessary. I add here that he has claimed against the Attorney General and Mr Lutterodt damages for £2.5 million. He argues that they have been parties (1) to fraud by starting this application or continuing it; (2) by being parties to perverting the course of justice; and (3) bringing the justice system into disrepute by interfering in proper civil litigation.

38. For my part the applicant has established that there was no good cause for bringing these many actions. No dishonesty or fraud is made out here. Far from bias being shown against Mr Oakes, the judges before whom he has appeared have applied the law. The real problem, in my judgment, is that Mr Oakes refuses to accept that. He persists in litigation which has no merit. He makes great complaint about the injustices he has suffered, but his actions have been fully and extensively litigated and he has lost them in each and every case.Looking at the whole history of the various pieces of litigation, the view of them as outlined by Mr Oakes is distorted. No decision of the court is accepted by him unless it is favourable to him. He does not abide by the court’s rulings and when necessary he returns to decided issues in a new guise. He has a persistence not matched by judgment. He laments that he is a litigant in person, but a sensible reading of the files in this case show that the courts have been courteous, thorough, patient and helpful to him. He has not suffered in any way by conducting his own litigation. On the other hand, he has created anxiety and expense for his opponents. In my judgment the authority of the court is being invoked by Mr Oakes without reasonable cause to the detriment of other people. He is doing this habitually and persistently and must be restrained from continuing to do so, although it is a restraint on his civil rights. Opponents who have been harassed by the worry and expense of vexatious litigation are entitled to be protected. It must also be borne in mind that the resources of the judicial system should not be squandered on those who do not have genuine grievances. I am wholly satisfied that Mr Oakes has habitually and persistently, and without any reasonable ground, instituted vexatious civil proceedings and made vexatious applications in civil proceedings. A civil proceedings order should be made against him in the terms set out in the draft that has been presented to us.

39. I add this. By making a civil proceedings order Mr Oakes is not prevented absolutely from continuing or instituting civil proceedings. He must first obtain the permission of the High Court before so doing and satisfy the court that the proceedings or applications are not an abuse of the process of the court and that there are reasonable grounds for the proceedings or applications.

40. THE LORD CHIEF JUSTICE: For the reasons given by my Lord I also am satisfied that Mr Oakes has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings in the High Court against a number of different persons. The record of Mr Oakes’ litigation with proceedings repeatedly brought on the same grounds and repeatedly struck out or dismissed is adequate proof of that.

41. In the course of lengthy submissions made orally and on paper Mr Oakes points out, correctly, that he has acted in person and has been denied legal aid. He points to the difficulties which inevitably face a litigant in person seeking to conduct complex litigation in a procedural milieu with which he is unfamiliar. He attributes his repeated reverses in part to his own procedural inexperience. He also makes a number of criticisms of many of the tribunals before which he has appeared in this country, but does acknowledge his own procedural errors. Thus he accepts the description of himself as a prolific litigator and accepts that his procedural errors have led to many reverses. But he contends that he has well-founded claims which he wishes to pursue and strongly resists any fetter on his right to pursue them in the courts. Mr Oakes has sought to go into the fine detail of the facts on which his various claims are based. We cannot however review these facts. Our concern is with the history of Mr Oakes’ litigation, which speaks for itself. One is bound to observe that, insofar as Mr Oakes has any arguable claims, he has not lacked opportunity to bring them before the courts.

42. The court is mindful that any step which restricts an individual’s ordinary right of access to the court is a serious step not to be taken lightly. The court is also, however, mindful of the harassment to which others are exposed if they are sued time after time, being put to the burden and expense of dismissing the same or very similar claims, compensated only by orders for costs which are not in practice enforceable. A balance has to be struck between the prima facie right which any person has to litigate and the reasonable protection of those who are repeatedly subject to abusive claims. That is the function of section 42 of the Supreme Court Act 1981 and I am satisfied both that the conditions for making a civil proceedings order under the section are satisfied and that it is appropriate to make an order.

43. Under subsection (3) of that section 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 existing civil proceedings order is not to 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. Mr Oakes objects to an order because he says that in practice leave under subsection (3) is never given. It may very well be that leave is very rarely given, but if leave is refused it is because the High Court is not satisfied that the proceedings or application in question are not an abuse of the process of the court or that there are reasonable grounds for the proceedings or application. That is not a high threshold to cross. If Mr Oakes can show an arguable and apparently bona fide claim which has not already been the subject directly or indirectly of previous proceedings before the court, there is no reason why he should not obtain leave. As it is I am satisfied that it is right to make the order sought.

44. THE RESPONDENT: For clarification -- this is not a challenge to the order; I am long enough in the tooth to know the facts of life. But there is just one qualification. I think both of your Lordships spoke about vexatious proceedings. But there was some debate yesterday from Mr Carr about whether that should or should not include Townsend Investments Inc, Liberia?

45. THE LORD CHIEF JUSTICE: The order, Mr Oakes, covers that.

46. THE RESPONDENT: You are in your order including Townsend Investments Inc?

47. THE LORD CHIEF JUSTICE: Yes, we are. “By his servants or agents, including but not limited to Townsend Investments Incorporated.”

48. THE RESPONDENT: I sought clarification. Two final things. One is that yesterday there appeared to be a fairly massive transcript of events. Because of my being an exempt status of legal support I am normally entitled to transcripts at the expense of the court. Normally I would make an application to the court and it would come through to you for advice, but may I ask you to direct that the court do provide me with copies of the transcript of yesterday?

49. THE LORD CHIEF JUSTICE: I do not know who asked for a transcript to be made yesterday?

50. THE RESPONDENT: I asked for the matter to be recorded.

51. THE LORD CHIEF JUSTICE: You did?

52. THE RESPONDENT: What I asked for was, in the belief that there was a master tape in court, I simply asked that the mechanical recording office to be on notice to check that there was a tape. That is what I did. I must confess I thought that was you, my Lord.

53. THE LORD CHIEF JUSTICE: Do you have anything to say about that, Mr Carr?

54. MR CARR: I have no observations to make, my Lord.

55. THE LORD CHIEF JUSTICE: No, we shall not make an order in relation to that, Mr Oakes.

56. THE RESPONDENT: But if I were to make an application to the court, you would not oppose it?

57. THE LORD CHIEF JUSTICE: You must do whatever you think best, subject to the order which has now been made, Mr Oakes.

58. THE RESPONDENT: Finally, my Lord, leave to appeal?

59. THE LORD CHIEF JUSTICE: You are seeking leave to appeal?

60. THE RESPONDENT: Yes.

61. THE LORD CHIEF JUSTICE: Do you say anything about that, Mr Carr?

62. MR CARR: I see no basis for that, but I leave it to your Lordships.

63. THE LORD CHIEF JUSTICE: Is there anything you want to urge in support of your application?

64. THE RESPONDENT: Yes. It sounds churlish, but your Lordship has made a judgment. My difficulty from that -- and you might expect me to say this -- is that there are a number of factual errors. I think the other point which I think concerns me is that in your summary when you were addressing the matter of whether there was or was not cause, it would be my view that you seemed to be dismissing my summary yesterday, more particularly in the Colocotronis matter and the transcript of Chadwick J, who quite clearly said that there was a cause of action. I thought you said that you were not looking behind as to whether there was a cause of action, particularly in that matter and also in the Mareva injunction matters. So it seems to me that if there is within the terms of the order which my Lord read out -- that is the description of the section 42 application -- it seems to me that one only needs to be vexatious in terms of a prolific number of proceedings, but also without reasonable cause. Now, it seems to me that I have demonstrated -- particularly this whole thing about Colocotronis; I do not think any of the others matter -- but against Colocotronis there is a proven case. I put that to you yesterday and I think the basis of your claim is either you could not look behind the application that there was cause. I think that was what you were saying. I think insofar as the particular section -- part of section 42 says “without reasonable cause”. It seems to me that, having demonstrated reasonable cause, which you then did not take into account, then that must provide prima facie grounds for appeal.

65. THE LORD CHIEF JUSTICE: Thank you very much, Mr Oakes. We shall not grant leave to appeal. Thank you.