IN THE HIGH COURT OF JUSTICE CO/2791/97

(DIVISIONAL COURT)

Royal Courts of Justice

Strand

London W2A 2LL

Tuesday, 9^th June 1998

B e f o r e:

LORD JUSTICE SIMON BROWN

and

MR JUSTICE HOOPER

HM ATTORNEY GENERAL

Applicant

- v -

THOMAS O’NEILL

MARGARITA O’NEILL

Respondent

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(Transcript of the computer aided Palantype notes of

Smith Bernal Reporting Ltd, 180 Fleet Street

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court

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MR R JAY (instructed by Treasury Solicitors) appeared on behalf of the applicant.

The respondents appeared on their own behalf with Mr Ewing as a Mckenzie friend.

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J U D G M E N T

(As approved by the Court)

JUDGMENT

LORD JUSTICE SIMON BROWN: This is the Attorney General’s application by Originating Notice of Motion dated 5^th August 1997 for a civil proceedings order to be made against the respondents, Thomas O’Neill and Margarita O’Neill, under section 42 of the Supreme Court Act 1981, as amended.

Section 42(1), so far as relevant, provides:

By subsection (2) it is provided that an order made under subsection (1):

Before turning to the substance of the application let me deal briefly with three preliminary matters. The first is as to the names now used by these respondents. The first respondent now purports to call himself Lord Charles Leslie Falconer of Thoroton. The second respondent purports to call herself John Morris, and indeed they claim, and may well be right in claiming, that they have changed their names by Deed Poll in that manner.

According to an affidavit sworn by the second respondent on 8^th June 1998 in the name of John Morris, they have taken that action:

Section 42, so far from being discredited, is, to my mind, alas, all too obviously a necessary power, and in invoking it, the law officers of the Crown are doing no more than their duty. It is of course always for the court to decide whether (such proceedings having been initiated) they have been rightly brought and the claim made good.

The duty exists so that others, where necessary, may be protected against the malice and mischief of certain obsessive litigants and so too that the valuable public resource of court time and effort may be devoted to legitimate litigation rather than be abused and wasted. As Lord Donaldson said in Attorney General v Marcus David Jones [1990] 1 WLR 859, the power to make an order is no doubt a drastic restriction on the respondents’ civil rights, but there are at least two reasons for doing so. First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection from litigation and secondly, the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who have genuine grievances and should not be squandered on those who do not.

It is inappropriate to pander to those like these respondents who seek to “lampoon” the law officers and to discredit established legislation. We accordingly have addressed Mrs O’Neill by that name, the name in which the proceedings were brought against her, and shall continue to refer to the respondents as Mr and Mrs O’Neill.

The second matter upon which I propose to say a word is the respondents’ use of Mr Ewing, a vexatious litigant, as a so-called McKenzie friend. It may be thought somewhat absurd to allow a person, whose utter lack of judgment and predilection for litigation has already caused him to be declared vexatious, to assist in court respondents who themselves are alleged to fall into that same category, and certainly the court cannot look with much confidence to finding help in that direction.

Rather, however, than refuse the application, as perhaps we should have done, we allowed it on the strict condition that Mr Ewing behaved himself, did not seek to address the court and did not disrupt the smooth running of the proceedings.

I doubt, however, whether anyone’s interests were well served by Mr Ewing’s involvement in the proceedings. Apart from his prior settling of documents, all it resulted in was Mrs O’Neill parroting what Mr Ewing said to her in court sotto voce.

The third and final matter I address at this stage is the application which Mrs O’Neill made at the outset for an adjournment of this matter from today’s list. Some forewarning of such an application was to be found in a letter from a firm of solicitors, Veera and Co., dated 1^st June 1998 to the Treasury Solicitor by which they:

That seems to me a transparent attempt to delay the process for no good reason whatever. As stated, this process was started as long ago as early August of last year. It is absurd that within days of the Hearing it should be sought, for the first time, to obtain Legal Aid to instruct counsel.

Secondly, Mrs O’Neill places before us an undated medical certificate from a doctor in respect of her husband. It suggests that as a result of a stroke, now a year ago, he is disabled and:

That again seems to me to be a wholly insufficient basis upon which to adjourn the present proceedings for an indefinite further period. Mrs O’Neill is here; perhaps more to the point, Mr Ewing is here, and has prepared a very full skeleton argument for both the O’Neills. There is no reason to suppose that the argument in the case, which is brought jointly against them, would have taken on any different complexion if Mr O’Neill had been present.

Let me now indicate, in board terms, the essential background to this application and something of the long list of actions which have prompted it.

Most of this I take from the affidavit sworn in these proceedings by Mr Bennet, a solicitor in the Treasury Solicitor’s department. None of the matters which he deposes to, I should at once note, are challenged or otherwise commented upon in any detail either in the second respondent’s 15 page affidavit or indeed in her 79 page skeleton argument. I refer to it as ‘her’ skeleton argument, but in fact of course it was prepared by Mr Ewing.

The background to this application consists of protracted wardship proceedings over many years. They concerned five children whom the respondents had, born between 1983 and 1988, all of whom were made wards of court and committed to the care of the London Borough of Islington.

On 14^th March 1990 Hollings J ordered: (1) that those five children remain wards of court, committed to the care of the London Borough of Islington (hereafter LBI), (2) LBI have leave to place the minors with long term foster parents with a view to their adoption, (3) the respondents be denied any access to the children.

On 19^th July 1990 the Court of Appeal, consisting of the President and Glidwell LJ, dismissed an appeal against that order.

On 14^th January 1991 Hollings J dismissed the respondents’ application for access and discovery.

On 12^th May 1992 Rattee J dismissed the respondents’ application to adjourn the adoption proceedings.

On 15^th July 1992 the Court of Appeal dismissed the respondents’ appeal for non-compliance with the rules.

On 19^th February 1993 Hollings J dismissed the respondents’ application for discovery.

On 15^th March 1993 the Court of Appeal refused to reinstate the respondents’ appeal which had been struck out on 15^th July 1992.

On 13^th May 1993 Wilson J ordered inter alia that the respondents should not issue any applications in any proceedings relating to the minors without either his leave or the leave of Ewbank J.

On 25^th June 1993 Ewbank J gave judgment in an application by the LBI for Mr and Mrs O’Neill to be committed to prison for their alleged breach of an injunction made by Ward J, as he then was, in March 1990.

Ewbank J decided that although Mr and Mrs O’Neill’s behaviour was “deplorable” - they had in fact camped outside the home of two of the adopted children - there was no injunction in force at the time against such behaviour. In the course of his judgment he referred to there having already been “some 77 orders in relation to the children” - some indication of the nature and scale of those underlying proceedings. Ewbank J then imposed an injunction enjoining the respondents from attempting to contact the children and warned them that any breach of it was likely to result in imprisonment.

On 18^th July 1994 Wilson J granted an injunction restraining the respondents from making allegations of abuse or neglect in relation to the children and from molesting or otherwise interfering with the children and their adoptive parents. It was also ordered that they should not make any application in the proceedings without the leave of a High Court Judge.

On 9^th November 1994 the LBI applied for the respondents to be committed as a result of alleged breaches of Wilson J’s order of 18^th July 1994.

On 12^th December 1994 Wilson J found the respondents to be in contempt and committed them to prison for a year. Mr and Mrs O’Neill appealed, that appeal being dismissed on 13^th January 1995. Their application for leave to petition the House of Lords was refused on 21^st February 1995. So much for the underlying wardship proceedings.

I turn now to the 24 separate actions brought by the respondents against a whole range of people who (save only for the defendants in the twenty fourth and final case) directly or indirectly in some way came to be or were thought to be involved in the wardship proceedings.

Action 1 was against the LBI. Mr and Mrs O’Neill alleged that the authority had sought to deceive the courts in relation to their children. On 3^rd February 1993 it was struck out by Master Trench. Mr and Mrs O’Neill appealed. Their appeal was dismissed on 25^th February 1993. An application for leave to appeal was refused on 27^th July 1993.

Action 2 alleges that the authority were in breach of a duty of care owed to the O’Neills. This action was struck out by Master Trench on 28^th May 1993. There was then an appeal, the outcome of which is not known.

The third action, also against the LBI, sought discovery of medical reports allegedly in the authority’s possession. That action was struck out by Master Trench on 28^th May 1993. Again the outcome of the appeal is not known.

Action 4, also against the LBI, was issued in June 1994 claiming negligence against them for an alleged failure to investigate the serious sex abuse allegedly caused to the O’Neill’s family. The defendant’s application to strike it out was apparently to be heard on 19^th January 1995 when, as will appear, a number of other actions were struck out. It is unclear, however, what in the event happened in regard to action 4.

Action 5 was brought against Dr Jonathan Dare, a psychiatrist involved in the care proceedings who Mr and Mrs O’Neill alleged to have been negligent. That was one of the several actions struck out by Mr Kallipetis QC, sitting as a Deputy Judge of the Queen’s Bench Division on 19^th January 1995.

Action 6 was against another medical practitioner, Dr Davidson, who also had been involved in the child proceedings and against him it was alleged that he had given false evidence by making up a letter. That action too was struck out by Mr Kallipetis QC on 19^th January 1995.

Action 7 was against the official solicitor who Mr and Mrs O’Neill alleged owed them a duty of care. This action was struck out by Master Tennant on 22nd March 1994.

Mr and Mrs O’Neill also applied in those proceedings for the summary judgment, that application being dismissed by Master Foster on 12^th April 1994.

Both those orders and appeals were dismissed by Judge Lachs on 14^th June 1994 when leave to appeal to the Court of Appeal was also refused.

The Court of Appeal itself refused leave to appeal against that order on 9^th October 1995.

The Court of Appeal further ordered on that occasion that Mr and Mrs O’Neill should not be allowed to make any further applications or take any steps without that Court’s leave.

Action 8 was another action against the Official Solicitor. It too was struck out by Mr Kallipetis on 19^th January 1995.

Action 9 was brought against the NSPCC and Mr Sheenan. Those defendants too were alleged to have broken duties of care to the O’Neills. The O’Neills’ application for summary judgment was dismissed on 15^th March 1994. Mr and Mrs O’Neill sought to appeal against that order. The defendant applied to strike out the action. This was another of the actions struck out by Mr Kallipetis on 19^th January 1995.

Action 10, a further action against the NSPCC, appears also to have been subject to an application to strike out, although it is unclear what in the event happened.

Action 11 was brought against the Metropolitan Police Commissioner, claiming that the police had attacked the O’Neills on 27^th May 1992. The outcome of those proceedings in unclear.

Action 12 was brought against the Good Shepherd Convent. By it the O’Neills sought to obtain discovery of medical records relating to their children in the Convent’s possession. The O’Neills also alleged that the Convent had abused their children. It appears that the discovery application was dismissed as an abuse of process.

Actions 13 to 19 were brought by Mr and Mrs O’Neill alleging negligence against a whole series of solicitors whom they had instructed.

The outcome of action 13 is not known. Action 14 was struck out on 12^th October 1994. Action 15 was struck out on 16^th August 1994. There was apparently an appeal from that, the outcome of which is unclear. The outcome of action 16 is not known. A conditional striking out order was made in action 17; its further course is not known. Action 18 was another of those struck out by Mr Kallipetis QC on 19^th January 1995. The outcome of the application to strike out action 19 is unknown.

Actions 20 and 21 were brought respectively against the Prime Minister and the Home Secretary, alleging failure to investigate complaints about the local authority. Those were struck out by Mr Kallipetis QC on 19^th January 1995.

Actions 22 and 23 were brought respectively against News International and against Mr and Mrs Cooper. They arose out of an article which appeared in The Sun newspaper on 14^th August 1995. The action against the newspaper was struck out by Master Hodgson on 25^th May 1996. The action against the Coopers, who were pursued by the O’Neills as the adoptive parents referred to in the article, was struck out on 23^rd May 1996.

Action 24 was brought by the O’Neills against a family called McGee and alleged that this family, who lived locally, had harassed them because of the publicity following the article in The Sun newspaper. I say no more about that action than that it is unclear what the present state of the proceedings are. Without in any way suggesting that it has any merit, I disregard it for the purposes of determining whether or not this application is made good.

The principles upon which the court acts in determining applications under section 42 are too well-known to require restating here. Essentially it is for the applicant to prove to a high standard that the respondents have indeed, in the words of the statute:

In determining this the court necessarily looks at the whole history of the matter and this we have of course done.

The applicant here contends that the wardship proceedings were characterised by a persistent refusal on the part of Mr and Mrs O’Neill to accept judgments of the court and indeed to abide by them, all of which resulted in numerous vexatious applications and appeals. Several orders were made restricting the O’Neills’ ability to make application within those wardship proceedings. Then Mr and Mrs O’Neill began to attack, by litigation, those whom they blame for the loss of their children. That accounts for the great bulk of the 24 (or at any rate 23) actions to which I have already made reference. At least 18 of these have now been wholly or partly struck out or dismissed. They constitute a thinly veiled attempt to re-litigate the merits of the wardship proceeding by collateral challenge.

On the face of it the evidence here presents an overwhelming case for the making of a section 42 order and indeed one that will remain in force indefinitely.

What then is said by the respondents in reply? I have already mentioned that the second respondent’s skeleton argument numbers 79 pages, a great number of cases are cited, many statutes are referred to, innumerable points are taken. The plain fact is, however, that without exception all are misconceived, raising no serious considerations whatever. Many I understand to have been rehearsed unsuccessfully on previous occasions, when in the course of other section 42 applications Mr Ewing has been allowed to act as a McKenzie friend.

I do not propose to dignify the points with detailed reputation. Suffice it to say that I am wholly unpersuaded that there is the least merit in any of them, technical or otherwise.

I had wondered at the outset whether just possibly there might be something in one of the legion points raised, namely the point taken in respect of the delegation of authority to act in this case from the Attorney General to the Solicitor General under section 1(1)(c) of the Law Officers Act 1944. Mr Jay QC tells us, however, that this point has already been considered as a result of another of Mr Ewing’s arguments by the Court of Appeal in a case called Hayward and there was found to be nothing in it.

The first 6 pages of Mr Ewing’s skeleton argument purport to list 31 separate issues, all of which relate, not to the particular facts of this case, but rather to the making of section 42 orders generally, a matter upon which, as indicated, the respondents, or at any rate Mr Ewing, hold strong and essentially political views.

Just to give something of the flavour of the issues raised, let me quote three, virtually at random: One:

One need say no more about that than that plainly if this Court was satisfied that the particular application was indeed oppressive or unconstitutional, we should hardly accede to it.

Two:

I suspect that the office of Solicitor-General too is intended to be included in that issue. Either way, one only has to state the issue to realise that it is not a point of any substance.

Three:

That too is an absurd point.

Many other issues and much of the skeleton argument as a whole are taken up with whether and when it is appropriate to grant leave under section 42(3). Those questions however, as I sought to explain to Mrs O’Neill in the course of argument, arise only if and after a section 42(1) order has been made. It is quite unnecessary and indeed inappropriate to address them now. The sole issue before this court today is whether a section 42(1) order should be made against either or both of the respondents and if so whether it should be limited in point of time.

In my judgment an order plainly should be made against both respondents unlimited in point of time. The evidence in support of this application is overwhelming and nothing that I have read or heard or seen in the course of these proceedings has done other than confirm that this is a classic case for the making of such an order.

MR JUSTICE HOOPER: I agree.

LORD JUSTICE BROWN: Thank you very much. We will adjourn.

THE RESPONDENT: Excuse me, sir, we need leave to appeal and leave for a transcript of this hearing at public expense, order 6 day rule 4(?), because we are on low income -- income support. Three copies of the transcript/judgment of today’s hearing, one for myself and two for the Civil Appeals Office, at public expense. Is that possible on the grounds of poverty income support?

LORD JUSTICE SIMON BROWN: Mr Jay, I think generally In these cases we do allow a transcript of the judgment to go at public expense to the parties, when they are litigants in person, do we not?

MR JAY: My Lord, yes.

LORD JUSTICE SIMON BROWN: It is the judgment alone of course, and shall we perhaps provide two copies because there are two respondents, although they have identical cases. Two copies of the judgment to go at public expense to Mr and Mrs O’Neill. Leave to appeal is refused.

THE RESPONDENT: What about leave to appeal?

LORD JUSTICE SIMON BROWN: I just said leave to appeal is refused.

THE RESPONDENT: I didn’t hear, I’m sorry.