"I desire to add this. The Divisional Court refused an application for leave to appeal from their decision, but leave to appeal was given by this Court. The jurisdiction which the judges of the Divisional Court have to give or to refuse leave to appeal from their own decisions is a very delicate one. Merely to say that they are satisfied their decision is right is not, I venture to suggest, a sufficient reason for refusing leave to appeal, when the question involved is one of principle and they have decided it for the first time. If that was carried to its legitimate conclusion, they ought to refuse leave to appeal in every case."

"We gave leave to appeal in this case, not because we thought there was any real doubt about the law, but because the question was one of general importance and one upon which further argument and a decision of this Court would be to the public advantage."

-------------------------------------------------------------------------------"But I think the case illustrates the need, which I regard as pressing, for the provisions of RSC Ord 53 to allow the court to refuse leave on some grounds, while granting it on others, as its view of the application’s merits dictates."

"Suffice it to say that, whilst there may well be strong grounds for amending the law, the amendment must be achieved in a constitutional manner and not by a process of modification in practice."

"These questions raise issues of some general importance, not least because of the expected coming into force of the Human Rights Act 1998."

"The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

In my judgment, this case falls within the first category of case, viz where the judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure: see Shetreet Judges on Trial (1976) p 303 and De Smith, Woolf and Jowell Judicial Review of Administrative Action (5th edn, 1995) p 525. I will call this ‘automatic disqualification’.

In Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759, 10 ER 301 the then Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. In the action Lord Cottenham LC sat on appeal from Shadwell VC, whose judgment in favour of the company he affirmed. There was an appeal to your Lordships’ House on the grounds that Lord Cottenham LC was disqualified. Their Lordships consulted the judges, who advised that Lord Cottenham LC was disqualified from sitting as a judge in the cause because he had an interest in the suit (see 3 HL Cas 759 at 786, 10 ER 301 at 312. This advice was unanimously accepted by their Lordships. There was no inquiry by the court as to whether a reasonable man would consider Lord Cottenham LC to be biased and no inquiry as to the circumstances which led to Lord Cottenham LC sitting. Lord Campbell said (3 HL Cas 759 at 793, 10 ER 301 at 315):

------------------------------------------------------------------------------------------------------------------------------------------------------------"My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties. Thus in my opinion if Lord Hoffmann had been a member of Al he would have been automatically disqualified because of his non-pecuniary interest in establishing that Senator Pinochet was not entitled to immunity. Indeed, so much I understood to have been conceded by Mr Duffy."

---------------------------------------------------------------------------------------------------------------------------------------------------------"If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart CJ’s famous dictum is to be observed: it is ‘of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’ (see R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234)."

"In the present case your Lordships are not concerned with a judge who is a party to the cause, nor with one who has a financial interest in a party to the cause or in the outcome of the cause. Your Lordships are concerned with a case in which a judge is closely connected with a party to the proceedings."---------------------------

------------------------------------------------------------------------------------------------------------------------------------------------------------"It follows that in this context the relevant interest need not be a financial interest. This is the view expressed by Professor Shetreet in his book Judges on Trial (1976) p 310, where he states that a ‘judge may have to disqualify himself by reason of his association with a body that institutes or defends the suit’, giving as an example the chairman or member of the board of a charitable organisation."

"One of the cornerstones of our legal system is the impartiality of the tribunals by which justice is administered. In civil litigation the guiding principle is that no one may be a judge in his own cause: nemo debet esse judex in propria causa. It is a principle which is applied much more widely than a literal interpretation of the words might suggest. It is not confined to cases where the judge is a party to the proceedings. It is applied also to cases where he has a personal or pecuniary interest in the outcome, however small. In London and Northern Rly Co v Lindsay (1858) 3 Macq 99 the same question as that which arose in Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759, 10 ER 301 was considered in an appeal from the Court of Session to this House. Lord Wensleydale stated that, as he was a shareholder in the appellant company, he proposed to retire and take no part in the judgment. Lord Cranworth LC said that he regretted that this step seemed to be necessary. Although counsel stated that he had no objection, it was thought better that any difficulty that might arise should be avoided and Lord Wensleydale retired.

In Sellar v Highland Rly Co 1919 SC (HL) 19 the same rule was applied where a person who had been appointed to act as one of the arbiters in a dispute between the proprietors of certain fishings and the railway company was the holder of a small number of ordinary shares in the railway company. Lord Buckmaster (at 20-21), after referring to the Dines and Lindsay cases, gave this explanation of the rule:

"As my noble and learned friend Lord Goff of Chieveley said in R v Gough [1993] 2 All ER 724 at 730, [1993] AC 646 at 661, the nature of the interest is such that public confidence in the administration of justice requires that the judge must withdraw from the case or, if he fails to disclose his interest and sits in judgment upon it, the decision cannot stand. It is no answer for the judge to say that he is in fact impartial and that he will abide by his judicial oath. The purpose of the disqualification is to preserve the administration of justice from any suspicion of impartiality. The disqualification does not follow automatically in the strict sense of that word, because the parties to the suit may waive the objection. But no further investigation is necessary and, if the interest is not disclosed, the consequence is inevitable."-------------------------------------------------------------------------------------------------------------------------------------------------------------------------"In practice judges are well aware that they should not sit in a case where they have even the slightest personal interest in it either as defendant or as prosecutor.

The ground of objection which has invariably been taken until now in criminal cases is based on that other principle which has its origin in the requirement of impartiality. This is that justice must not only be done; it must also be seen to be in done. It covers a wider range of situations than that which is covered by the maxim that no one may be a judge in his own cause. But it would be surprising if the application of that principle were to result in a test which was less exacting than that resulting from the application of the nemo judex in sua causa principle. Public confidence in the integrity of the administration of justice is just as important. perhaps even more so, in criminal cases. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) makes no distinction between civil and criminal cases in its expression of the right of everyone to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

---------------------------------------------------------------------------------------------------------------------------------------------------------"Where a judge is performing a judicial duty, he must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial."

"In his judgment in R v Gough [1993] 2 All ER 724 at 728, [1993] AC 646 at 659 my noble and learned friend Lord Goff of Chieveley made reference to the great importance of confidence in the integrity of the administration of justice, and he said:

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------‘However I am of opinion that there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation. I find persuasive the observations of Lord Widgery CJ in R v Altrincham Justices, exp Pennington [1975] 2 All ER 78 at 81, [1975] QB 549 at 552:

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A similar view was expressed by Deane J in Webb v R (1994) 181 CLR 40 at 74:

‘The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment ... The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.’ (My emphasis.)

An illustration of the approach stated by Lord Widgery CJ and Deane J in respect of a non-pecuniary interest is found in the earlier judgment of Lord Carson in Frome United Breweries Co Ltd v Bath Justices [1926] AC 586 at 618, [1926] All ER Rep 576 at 593 when he cited with approval the judgments of the Divisional Court in R v Fraser (1893) 9 TLR 613. Lord Carson described R v Fraser as one––

I have already stated that there was no allegation made against Lord Hoffmann that he was actually guilty of bias in coming to his decision. and I wish to make it clear that I am making no finding of actual bias against him. But I consider that the links, described in the judgment of Lord Browne-Wilkinson, between Lord Hoffmann and Amnesty International, which had campaigned strongly against General Pinochet and which intervened in the earlier hearing to support the case that he should be extradited to face trial for his alleged crimes, were so strong that public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand."

"My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially ; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of Courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as judges of the rights of others."-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"2. In determination of their rights and liabilities, civil or criminal, everyone is entitled to a fair hearing by an impartial tribunal. That right, guaranteed by the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969), is properly described as fundamental. The reason is obvious. All legal arbiters are bound to apply the law as they understand it to the facts of individual cases as they find them. They must do so without fear or favour, affection or ill-will, that is without partiality or prejudice. Justice is portrayed as blind not because she ignores the facts and circumstances of individual cases but because she shuts her eyes to all considerations extraneous to the particular case.

3. Any judge (for convenience, we shall in this judgment use the term ‘judge’ to embrace every judicial decision-maker, whether judge, lay justice or juror) who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the important right to which we have referred and violates one of the most fundamental principles underlying the administration of justice. Where in any particular case the existence of such partiality or prejudice is actually shown, the litigant has irresistible grounds for objecting to the trial of the case by that judge (if the objection is made before the hearing) or for applying . a set aside any judgment given Such objections and applications based on what, m the case law, is called ‘actual bias’ are very rare, partly (as we trust) because the existence of actual bias is very rare, but partly for other reasons also. The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.

4. There is, however, one situation in which, on proof of the requisite facts, the existence of bias is effectively presumed, and in such cases it gives rise to what has been called automatic disqualification. That is where the judge is shown to have an interest in the outcome of the case which he is to decide or has decided. The principle was briefly and authoritatively stated by Lord Campbell in Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759 at 793-794, 10 ER 301 at 315, when orders and decrees made by and on behalf of the Lord Chancellor were set aside on the ground that he had had at the relevant times a substantial shareholding in the respondent company:

---------------------------------------------------------------------------------------------------------------------------------------------------------

"7. The basic rule is not in doubt. Nor is the rationale of the rule: that if a judge has a personal interest in the outcome of an issue which he is to resolve, he is improperly acting as a judge in his own cause; and that such a proceeding would, without more, undermine public confidence in the integrity of the administration of justice (see Dimes’ case, in the passage quoted and R v Gough [1993] 2 All ER 724 at 730, [1993] AC 646 at 661 per Lord Goff of Chieveley)."

---------------------------------------------------------------------------------------------------------------------------------------------------------

"10. While the older cases speak of disqualification if the judge has an interest in the outcome of the proceedings ‘however small’, there has in more recent authorities been acceptance of a de minimis exception: BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers’ Union 1992 (3) SA 673, R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139 at 162 and Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 at 148. This seems to us a proper exception provided the potential effect of any decision on the judge’s personal interest is so small as to be incapable of affecting his decision one way or the other; but it is important, bearing in mind the rationale of the rule, that any doubt should be resolved in favour of disqualification. In any case where the judge’s interest is said to derive from the interest of a spouse, partner or other family member the link must be so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the judge himself.

11. Until recently the automatic disqualification rule had been widely (if wrongly) thought to apply only in cases where the judge had a pecuniary or proprietary interest in the outcome of the litigation. That is what Dimes’ case concerned, although the statement of principle quoted above is not in terms so limited. In R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [1999] 1 All ER 377, [1999] 2 WLR 272 the House of Lords made plain that the rule extended to a limited class of non-financial interests. Lord Browne-Wilkinson said:

Lord Browne-Wilkinson added:

12. The other members of the House agreed that the rule should be extended to the extent indicated, and Lord Hutton observed that:

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"15. Although disqualification under the rule in Dimes and Pinochet (No 2) is properly described as automatic, a party with an irresistible right to object to a judge hearing or continuing to hear a case may, as in other cases to which we refer below, waive his right to object. It is however clear that any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not.

16. In practice, the most effective guarantee of the fundamental right recognised at the outset of this judgment is afforded not (for reasons already given) by the rules which provide for disqualification on grounds of actual bias, nor by those which provide for automatic disqualification, because automatic disqualification on grounds of personal interest is extremely rare and judges routinely take care to disqualify themselves, in advance of any hearing, in any case where a personal interest could be thought to arise. The most effective protection of the right is in practice afforded by a rule which provides for the disqualification of a judge, and the setting aside of a decision, if on examination of all the relevant circumstances the court concludes that there was a real danger (or possibility) of bias. Until 1993 there had been some divergence in the English authorities. Some had expressed the test in terms of a reasonable suspicion or apprehension of bias: see eg Law v Chartered Institute of Patent Agents [1919] 2 Ch 276 at 290, R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234, Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 3 All ER 304 at 310, 311, 314, [1969] 1 QB 577 at 599, 602, 606, R v Liverpool City Justices, ex p Topping [1983] 1 All ER 490 at 494, [1983] 1 WLR 119 at 123 and R v Mulvihill [1990] 1 All ER 436 at 441, [1990] 1 WLR 438 at 444. This test had found favour in Scotland (Bradford v McLeod 1986 SLT 244), Australia (R v Watson, ex p Armstrong (1976) 136 CLR 248) and South Africa (the BTR Industries case). Other cases had expressed the test in terms of a real danger or likelihood of bias: R v Rand (1866) LR 1 QB 230 at 233, R v Sunderland Justices [1901] 2 KB 357 at 371, R v Camborne Justices, ex p Pearce [1954] 2 All ER 850 at 855, [1955] 1 QB 41 at 51, R v Barnsley County Borough Licensing Justices, ex p Barnsley and District Licensed Victuallers’ Association [1960] 2 All ER 703 at 714, [1960] 2 QB 167 at 186 and R v Spencer, R v Smails [1986] 2 All ER 928, [1987] AC 128. Whatever the merits of these competing tests, the law was settled in England and Wales by the House of Lords’ decision in R v Gough [1993] 2 All ER 724, [1993] AC 646. The gist of that decision is to be found in two brief extracts from the leading speech of Lord Goff. The first is where he said:

‘In my opinion, if in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore, the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose. (See [1993] 2 All ER 724 at 735-736, [1993] AC 646 at 668.)

The second passage is:

‘In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise, I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him ...’ (See [1993] 2 All ER 724 at 737-738, [1993] AC 646 at 670.)

---------------------------------------------------------------------------------------------------------------------------------------------------------"For whatever the merit of the reasonable suspicion or apprehension test, the test of real danger or possibility has been laid down by the House of Lords and is binding on every subordinate court in England and Wales. This test appears to be reflected in s 24 of the Arbitration Act 1996 (see Laker Airways Inc v FLS Aerospace Ltd, FLS Aerospace Ltd v Laker Airways Inc [1999] 2 Lloyd’s Rep 45). In the overwhelming majority of cases we judge that application of the two tests would anyway lead to the same outcome. Provided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well informed member of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done."

------------------------------------------------------------------------------------------------------------------------------------------------------------"When in the course of a trial properly embarked upon some such association comes to light (as could equally happen with a barrister-judge), the association should be disclosed and addressed, bearing in mind the test laid down in R v Gough. The proper resolution of any such problem will, again, depend on the facts of the case.

21. In any case giving rise to automatic disqualification on the authority of Dimes’ case and Ex p Pinochet (No 2), the judge should recuse himself from the case before any objection is raised. The same course should be followed if for solid reasons, the judge feels personally embarrassed in hearing the case. In either event it is highly desirable, if extra cost, delay and inconvenience are to be avoided, that the judge should stand down at the earliest possible stage, not waiting until the eve or the day of the hearing. Parties should not be confronted with a last-minute choice between adjournment and waiver of an otherwise valid objection. If, in any case not giving rise to automatic disqualification and not causing personal embarrassment to the judge, he or she is or becomes aware of any matter which could arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance. We find force in observations of the Constitutional Court of South Africa in President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 at 177, even though these observations were directed to the reasonable suspicion test:

22. We also find great persuasive force in three extracts from Australian authority. In Re JRL, ex p CJL (1986) 161 CLR 342 at 352 Mason J, sitting in the High Court of Australia, said:

23. In Re Ebner, Ebner v Official Trustee in Bankruptcy (1999) 161 ALR 557 at 568 (para 37) the Federal Court asked:

24. In the Clenae case [1999] VSCA 35 Callaway JA observed (para 89(e)):

25. It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided."----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case,"-----------------------------------------------------------------------------------------------------------------------------------------------------"But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

26. We do not consider that waiver, in this context, raises special problems (Shrager v Basil Dighton Ltd [1924] 1 KB 274 at 293, R v Essex Justices, ex p Perkins [1927] 2 KB 475 at 489, [1927] All ER Rep 393 at 396, Ex p Pinochet (No 2) [1999] 1 All ER 577 at 589-590, [1999] 2 WLR 272 at 285, the Auckland Casino case [1995] 1 NZLR 142 at 150-151 and Vakauta v Kelly (1989) 167 CLR 568 at 572, 577). If, appropriate disclosure having been made by the judge, a party raises no objection to the judge hearing or continuing to hear a case, that party cannot thereafter complain of the matter disclosed as giving rise to a real danger of bias. It would be unjust to the other party and undermine both the reality and the appearance of justice to allow him to do so. What disclosure is appropriate depends in large measure on the stage that the matter has reached. If, before a hearing has begun, the judge is alerted to some matter which might, depending on the full facts, throw doubt on his fitness to sit, the judge should in our view inquire into the full facts, so far as they are ascertainable, in order to make disclosure in the light of them. But if a judge has embarked on a hearing in ignorance of a matter which emerges during the hearing, it is in our view enough if the judge discloses what he then knows."----------------------------------------------------------------------------------------------------------------------------------

------------------------------------------------------------------------------------------------------------------------------------------------------------

"Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him;"------------------------------------------------------------------------------------------------------------------------------------------------------

"It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but be seen to be done applies. When considering whether there is a real danger of injustice, the court gives effect to the maxim, but does so by examining all the material available and giving its conclusion on that material."---------------------------------------------------------------------------------------------------------------

"From R v Gough I derive the following propositions:

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(3) In reaching its conclusions the court ‘personifies the reasonable man’.

(4) the question upon which the court must reach its own factual conclusion is this: is there a real danger of injustice having ocurred as a result of bias? By ‘real’ is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak of a real risk or a real possibility.

(5) Injustice will have occurred as a result of bias if ‘the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him’. I take ‘unfairly regarded with disfavour’ to mean ‘was pre-disposed or prejudiced against one party’s case for reasons unconnected with the merits of the issue’/

(6) A decision-maker may have unfairly regarded with disfavour one party’s case either consciously or unconsciously. Where, as here, the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision-maker was unconsciously biased.

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(9) It is not necessarily for the applicants to demonstrate a real possibility that the coroner’s decision would have been different but for bias; what must be established is the real danger of bias having affected the decision in the sense of having caused the decision-maker, albeit unconsciously, to weigh the competing contentions, and so decide the merits, unfairly."

"It has long been regarded as essential that judicial decision-makers should so far as reasonably possible, resolve disputes coming before them on their legal and factual merits, uninfluenced by extraneous prejudice or predilection or personal interest. The qualification ‘so far as reasonably possible’ is necessary because judicial decision-makers are human beings upon whom multifarious experiences and influences inevitably leave a mark. The decision maker should consciously shut out of his decision-making process any extraneous prejudice or predilection of which he is unaware. The name given by the law to extraneous prejudice or predilection or personal interest in this context is bias."

"This Court has given the Respondent the opportunity of being heard, but it is not obliged by the section to make an order. What the section is saying is, if the Court is satisfied that the actions and the applications are vexatious, the Court may make an order. So plainly, this Court has a discretion."

------------------------------------------------------------------------------"However, the Court has a jurisdiction, and a discretionary jurisdiction, as to whether or no to make such an Order and I have applied my mind to whether or no the present is a case where an Order ought to be made."------------------------------------------------

"Before such an order can be made, the court must be satisfied that he has habitually and persistently and without any reasonable ground, instituted vexatious civil proceedings, made vexatious applications in civil proceedings or instituted vexatious prosecutions. In the event that the court is satisfied in relation to those matters, the court has a discretion, after hearing the person against whom the order is sought or giving him the opportunity of being heard, to make, as is sought in the present case, an all proceedings order."

"Before us this morning is listed an application under section 42 of the Supreme Court Act 1981. The Attorney-General seeks an all proceedings order against the Respondent under that section. Were such an order to be granted it would of course mean that the Respondent would be prohibited from bringing or continuing any civil or criminal proceedings or making any application in civil proceedings without the leave of the High Court. It goes without saying that the jurisdiction is important but also draconian and has to be exercised with great care. In the result, for reasons I shall explain shortly, we propose to adjourn the application."

"4 I should make it clear that we have not decided that the course of the Respondent’s litigation against his family would justify an order under section 42, having by no means heard full argument. But it is right to say that the voluminous papers, which of course we have studied with some care, disclose a powerful prima facie case if that litigation is looked at in isolation."-----------------------------------------------------------------------------------------

"5. We have today questioned Mr Parlett with some care as to his present intentions in relation to any litigation which might resurrect issues canvassed before His Honour Judge Jack. I emphasise that we have not sought any undertaking from him. That we think would be of doubtful propriety. He has, however, made it clear to us that he accepts that he can go no further in seeking to escape the effects of Judge Jack’s judgment, whether by the issue of civil or criminal process. If that is his true state of mind and he sticks to it, it would not be right to make a section 42 order today, not least given the history of other unconnected and perfectly proper litigation. We therefore canvassed the possibility with Mr Jay and with Mr Parlett himself that these proceedings might be adjourned. If after 12 months it is apparent that Mr Parlett indeed has not gone back to court to raise again these old issues arising out of his dispute with his family, then the Attorney-General would no doubt seek leave to withdraw the section 42 application. If, unhappily, Mr Parlett were to return to the fray and seek again to open up disputes settled by His Honour Judge Jack in an appeal, then no doubt the Attorney-General would seek to pursue the application under section 42."

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"9. In those circumstances, it seems to me right to adjourn the Attorney’s application under section 42. I would adjourn it for 12 months. At the end of that period the Attorney would no doubt seek to have the matter relisted and, as I have already said, it may then appear appropriate either to give leave to withdraw the application or unhappily to proceed with it. It goes without saying that nothing in this short judgment is intended to indicate what the result of the section 42 application would ultimately be if it were necessary to argue it out. It is obviously to be hoped in the public interest, and indeed in Mr Parlett’s interest, that such a course will not be necessary. It very much depends upon his own future conduct. I would make the Order that I have indicated."

"19. I am satisfied on the facts adduced in evidence before us that Mr Barker has instituted vexatious civil proceedings. "Vexatious" is a familiar term in legal parlance. 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. Those conditions are in my view met in this case. Many of the proceedings show no justiciable complaint and, as has been pointed out, several writs have been issued against individual officers in the same department when one writ would have served against them all.

20. I am furthermore satisfied that these vexatious civil proceedings have been instituted without any reasonable ground. All the proceedings have been struck out; none has gone to trial; none has been settled. Leave to appeal against Alliott J’s striking-out order in relation to the 19 actions was refused. In truth, none of these actions could have succeeded.

21. The calendar does, however, reveal that from the issue of the first bunch of eight writs on 15 December 1997 to the issue of the last County Court summons on 18 March 1998 was a three-month period within which this flurry of litigious activity was confined. Only one person, a solicitor, Mr Ryall, was sued more than once. While writs were issued against individual officers of the Hertfordshire County Council, the County Council itself was only sued once.

22. From extensive experience of dealing with applications under section 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 any 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.

23. Mr Tam acknowledges that the words "habitually and persistently" connote an element of repetition, but says that that repetition need not be over a long period. I would accept that qualification, but there must nevertheless be that element of repetition and in my judgment it is not shown here. I would accordingly hold that the conditions for making an order under section 42(1) are not satisfied. If however I am wrong in that conclusion I would not in any event exercise my discretion to make an order against Mr Barker. I do not consider that an order is necessary to prevent further abuse by him of the court process. Mr Barker appreciates that repetition of his previous resort to litigation would damage his mental health and disrupt his contact with his children, which is what he cares most about. He also fully appreciates that if he were to repeat his former conduct he would have no defence at all to an application by the Attorney General.

24. Mr Tam points out that the court could make an order for a limited period, as the section expressly permits, or could adjourn the hearing to see if all goes well. Those are possible options. There is, however, no real point in the first course if the court is satisfied, as I for my part am, that Mr Barker will not repeat his previous conduct in the months ahead. I further think that it is better that he should not have the matter hanging over him as a possible source of anxiety. He has told us that he wants to forget about the unhappy events of November 1997 to March 1998, and it is much better that he should do so. He has offered his word to the court that he will not repeat his previous conduct and I for my part would accept him as meaning what he says. I would therefore decline to make any order on this application."

"When that does not happen the question arises whether it would have made any difference if the owner had been there. I must say at once that the notion that when the rules of natural justice have not been observed, one can still uphold the result because it would not have made any difference, is to be treated with great caution. Down that slippery slope lies the way to dictatorship."

------------------------------------------------------------------------------

‘Yet no one can ever say for certain what must have happened in the circumstances which have not, in fact, arisen. The robing rooms up and down this land are full of strange tales of seemingly impregnable cases foundering on some unforeseen forensic reef. It is not, in my opinion, for this court to employ its imagination to postulate facts which might or might not have occurred or arguments which might or might not have succeeded had the rules of natural justice been followed. That such a fundamental rule as the present should be followed strikes me as a far more important factor than the destruction of one harmless dog.

As my Lord has said:

And I, for one, would not wish to do so.’

"It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse."

------------------------------------------------------------------------------"I can only say with regard to that point that I have always supposed it to be well-established law that the objection that the tribunal has no jurisdiction to entertain the case is one which, at all events in reference to proceedings in the High Court, may be taken at any time. If the Court in any case is itself satisfied that it has no jurisdiction to entertain the application made, it is its duty, in my opinion, to give effect to that view, taking, if necessary, the initiative upon itself. The plaintiff’s counsel failed, as it appears to me, to produce any authority for the proposition that such an objection to the jurisdiction could only be taken at the trial, for the case of Mayor, &c., of London v. Cox (1) has, I think, no application to a case of this kind."

------------------------------------------------------------------------------"It is true that the objection to the jurisdiction is taken at a very late stage in the case; and it is contended for the plaintiffs that, as it was not taken in the pleadings or before the Court of first instance, it ought to be disregarded. I fail to see how that can be so. It appears to me that such an objection to the jurisdiction may be raised at any time, and I cannot see how it is possible to hold that the defendants have waived that objection, so as to prevent their now raising it."------------------------------------------------------------

"Even if the point is a pure point of law, the appellate court retains a discretion to exclude it. But where we can be confident, first that the other party has had opportunity enough to meet it, secondly, that he has not acted to his detriment on the faith of the earlier omission to raise it and, thirdly, that he can be adequately protected in costs, our usual practice is to allow a pure point of law not raised below to be taken in this court. Otherwise, in the name of doing justice to the other party, we might, through visiting the sins of the adviser on the client, do an injustice to the party who seeks to raise it."

‘But what is the court to do if it has reason to believe that the defendant does not exist or that the appearance is entered without authority, but the parties do not raise the question or provide evidence on which it can be decided? Lord Parker of Waddington, in Daimler Company Limited v. Continental Tyre and Rubber Company (Great Britain) Limited (114 L. T. Rep. at p. 1058; ) 2 A. C. at p.33.) said: "But when the court in the course of an action becomes aware that the plaintiff is incapable of giving any retainer at all, it ought not to allow the action to proceed."--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"Of course, the defendants’ legal representative did not raise the question whether the defendant existed. Equally, of course, the plaintiffs who wanted the judgment for use in garnishee proceedings did not question the existence of the defendant. In consequence, no Russian decrees were given in evidence before the court in this case, though every member of the court had had them proved in other proceedings"--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"What, then, is the court to do? It must be remembered that the court is not a mere machine to decide such issues, genuine, fictitious or collusive as the parties choose to put before it, on such evidence, complete or incomplete, as they choose to put before it, without any power of inquiry into the truth of the matters and of investigating whether the judgment is to be used for purposes for which it could not be used if the real facts were known."------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"I think the court should, in this case, take similar steps to see that on the question whether this Russian bank really exists it has the proper evidence before it."

"I agree with my Lord that we ought not to give a final judgment in this case until our reasonable doubts as to the existence of the defendant corporation and the authority of the solicitors and counsel who have argued the appellants’ case to represent the defendant corporation if it still exists as a juristic person have been confirmed or removed."--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"If on inquiry this should be again proved, this action with which this appeal is concerned would be a purely hypothetical action in which it was sought to obtain a decision in the air, as it were, without the presence of any real defendant."--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"But this rule can have no application where the existence of a hypothetical defendant and the authority of those who purport to appear for it is deliberately excluded by the apparent parties who both desire for ulterior purposes that the existence of the defendant company and their authority to act for it should be admitted, and judgment should be obtained for one or other of the alleged parties. It is obvious that in such circumstances the court has inherent power to prevent an abuse of its processes, and to make such order as it deems necessary to ascertain the truth on these essential points. If any authority be required in support of this view it will be found in the case of Harbin v. Masterman (73 L. T. Rep. at p. 396; (1896) 1 Ch. at p. 365)."

"When the appeal was opened it was of course, apparent that we were to be asked to deal with it upon the same footing as before. In other words, we were being asked to treat a defendant as being alive and properly represented before the court when we have strong grounds for suspecting that he may be neither the one nor the other. This is not a position that any litigant is justified in asking the court to assume, and in my opinion we are not only entitled but in the interests of the proper administration of justice, we are bound to take steps to see that we do not so stultify ourselves."-----------------------------------------------------------------------------------------------------------------------------------------------

‘But if it includes an abridgement of the rights of the subject in regard to redress for crimes committed in regard to his person or his property, one would, I venture to think justly expect the Legislature, instead of using words of general import, to make it quite clear that criminal proceedings were intended to be included in the enactment. "Statutes which encroach on the rights of the subject whether as regards person or property, are similarly" (the learned author has in the preceding chapter been dealing with the construction of Penal Acts)" subject to a strict construction..... It is a recognised rule that they should be interpreted, if possible, so as to respect such rights." (Maxwell on the Interpretation of Statutes, 5th ed. p 461.)’

------------------------------------------------------------------------------"a strict construction of penal laws, or statutes encroaching on rights, especially the liberties of the subject, or imposing burdens; all are cases where general words have been cut down to a narrower meaning in endeavouring to seek the intention of the Legislature, not from the widest meaning of the words used, but from the considerations that must have influenced Parliament in framing the enactment."--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"In the case of this statute the Legislature clearly intends to interfere with some rights of persons, and uses words capable of extension to rights of litigation in criminal matters, but in my opinion more suitable to the subject-matter of rights of litigation in civil matters only. In my view, looking at the enacting parts of the statute only, the presumption against interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to that meaning which effects the least interference with those rights."

"I decline to make this more serious interference with the liberty of the subject, unless the Legislature uses language clear enough to convince me that that was its intention, and I think ample meaning is provided for its words, and ample remedy is provided for the grievance in respect of which Parliament was legislating by putting the narrower construction on the general words it has used."

"The principle of construction for which Mr Ewing contends is sound."

"But I think the history of judicial decisions is littered with cases in which points that appear later to be obvious have not been taken, even by the most eminent counsel, for reasons which are not clear––it may be from mere human fallibility."

"In considering the question whether or not this court is bound by its previous decisions and those of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely cases where this court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it, and there is no conflicting decision of this court or a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords."----------------------------------------------------------------"In the third class of case the court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound."

"I shall deal first with question (2.), which is most important and is decisive, since it is clear law, scarcely needing any express authority, that a judgment must be set aside and declared a nullity by the Court in the exercise of its inherent jurisdiction if and as soon as it appears to the Court that the person named as the judgment debtor was at all material times at the date of writ and subsequently non-existent :"---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"In the present case if the defendants cannot be before the Court, because there is in law no such person, I think by parity of reasoning the Court must refuse to treat these proceedings as other then a nullity."

"The general rule is that an action commenced in the name of a non-existent person, or company, is a nullity: see The Supreme Court Practice 1995 vol 1, para 15/6/1, p 201, citing Lazard Bros & Co Midland Bank Ltd [1933] AC 289 at 296, [1932] All ER Rep 571 at 576 per Lord Wright, Dubai Bank Ltd v Galadari (No 4) (1990) Times, 23 February (Morrit J) and Fielding v Rigby [1993] 4 All ER 294 at 297-298, [1993] 1 WLR 1355 at 1359."

"The general rule is that an action commenced in the name of a non-existent person, or company, is a nullity: see The Supreme Court Practice 1995 vol 1, para 15/6/1, p 201, citing Lazard Bros & Co Midland Bank Ltd [1933] AC 289 at 296, [1932] All ER Rep 571 at 576 per Lord Wright, Dubai Bank Ltd v Galadari (No 4) (1990) Times, 23 February (Morrit J) and Fielding v Rigby [1993] 4 All ER 294 at 297-298, [1993] 1 WLR 1355 at 1359."

------------------------------------------------------------------------------------------------------------------------------------------------------------‘A case of that kind did occur when I was out of the country last year, and, on the law as it stands at present, the man had to wait for my return before the matter could be considered. The Solicitor-General refused to act and had he not done so the man could have said, "I have not had my statutory rights, as the Attorney-General himself should consider it."’

------------------------------------------------------------------------------------------------------------------------------------------------------------"In theory, there is only one Secretary of State, and therefore each of the individual Secretaries of State can perform any functions which, either by Statute or in Common Law, have to be performed by the Secretary of State. But even if that were a possibility, I cannot think that my right hon. Friends the Secretaries of State would welcome a decision which put on their shoulders rather knotty legal problems and made them responsible for decisions which Parliament thought ought to be entrusted to trained lawyers. All I can say to my hon. and learned Friend is that, one must just hope that one or other of us will be here to carry out the functions."

------------------------------------------------------------------------------------------------------------------------------------------------------------"The Attorney-General is the only person who can direct certain prosecutions, and there are other instances of that kind."------------------------------------------------------------------------------------------

"Others of his public interest functions come from statute: for example, the Attorney’s right to apply to make people vexatious litigants; or his right to refer unduly lenient sentences to the Court of Appeal. With a few exceptions the performance of these functions is personal to the Attorney-General."

------------------------------------------------------------------------------"However, the Solicitor-General’s ability to act as the Attorney-General’s deputy is curiously limited. The reason is simply that most of the Attorney-General’s functions are conferred on him personally. Unless statute or the common law provides otherwise, they are exercisable only by the Attorney-General. In 1944, that became an acute problem, when the Attorney-General, Sir Donald Somervell, was in America for several months assisting––I believe––in the drafting of the charter of the United Nations. The Solicitor-General was Sir David Maxwell-Fyfe, who was unable to discharge Sir Donald’s functions without express statutory authority."

"No proceedings instituted in accordance with this Part of this Act by or against the Attorney General"---------------------------------"shall abate or be affected by any change in the person holding the office of Attorney General"--------------------------------

"Suffice it to say that, whilst there may well be strong grounds for amending the law, the amendment must be achieved in a constitutional manner and not by a process of modification in practice."

"These questions raise issues of some general importance, not least because of the expected coming into force of the Human Rights Act 1998."

‘As a result of the decision of the Court of Appeal in Re Pritchard decd. [1963] Ch.502, the present rule was by R.S.C. 1964 substituted for rr. 1 and 2 of the previous O.2, and under it the above distinction between nullity and mere irregularity disappears (see Harkness v. Bell’s Asbestos & Engineering Ltd [1967] 2 QB 729, p.735, CA.) at any rate in regard to "a failure to comply with the requirement of these rules," though it may still be that there are other failures to comply with statutory requirements or other improprieties so serious as to render the proceedings in which they occur, and any order made therein, a nullity.’

"As to documents, there can be no doubt that the applicant is entitled to disclosure of all the material necessary to enable him to present his appeal and answer any points made against him. He is thus clearly entitled to see any report, recommendations or submissions made by the F.P.C. and the M.P.C. and seen by the Secretary of State. In my view he should see all the documents put before the Secretary of State. In my view he should see all the documents put before the Secretary of State except where public interest immunity can be established or where any overriding confidentiality regarding a third party requires a particular document or part of it not to be disclosed:"----------------------------

------------------------------------------------------------------------------"Whatever the reason, it is conceded that the documents should have been disclosed. The applicant was deprived of the opportunity of responding to the adverse points made about him. In these circumstances, there really was no hearing at all of the applicant’s appeal: see Rex v. Housing Appeal Tribunal [1920] 3 K.B. 334, 340-342, per Earl of Reading C.J. It may well be that the outcome would have been different even if the documents had been disclosed. However, I am prepared to make a declaration that the failure to disclose the documents amounted to procedural impropriety. Despite the delay, I consider it to be in the interests of good administration that the procedural requirements on an appeal of this kind should be declared."

------------------------------------------------------------------------------"(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

------------------------------------------------------------------------------------------------------------------------------------------------------------"In my view he does possess this right, for without it there is a risk that some supposed fact which he could controvert, some opinion which he could challenge, some policy which he could argue against, might wrongly go unanswered."

------------------------------------------------------------------------------------------------------------------------------------------------------------"The guiding principle should always be that sufficient disclosure should be given to enable the petitioner property to present his case. That can only be done if he adequately appreciates the nature and extent of the evidence elicited by the Secretary of State’s enquiries."

-------------------------------------------------------------------------------"not only to keep its cards face down until the first court hearing but also to be selective as it liked as to which cards were then to be turned up."

"Mr Pannick submits that there is no obligation to show all to the complainant. He relies on three authorities, R v. Secretary of State, ex p. Mughal [1973] 3 All ER 796, [1974] QB 313, R v. Secretary of State, ex p. Santillo [1981] 2 All ER 897, [1981] QB 778 and R v. Monopolies and Mergers Commission, ex p. Matthew Brown plc [1987] 1 All ER 451, [1987] 1 WLR 1235. However, in each of those cases, the function of the decision-making body was towards the administrative end of the spectrum. Because of the nature of the Army Board’s function pursuant to 1976 Act, I consider that a soldier complainant under that Act should be shown all the material seen by the Board, apart from any documents for which public interest immunity can properly be claimed. The Board is not simply making an administrative decision requiring it to consult interested parties and hear their representations. It has a duty to adjudicate on a specific complaint of breach of a statutory right. Except where public interest immunity is established, I see no reason why on such an adjudication, the Board should consider material withheld from the complainant."

"68. The Commission recalls that the guarantees in paragraph 3 of Article 6 of the Convention are specific aspects of the right to fair trial set forth in paragraph 1 (see Eur. Court HR, T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 25). The Commission will therefore consider the applicants’ complaint in the light of the two provisions taken together.

69. In assessing whether defence rights have been secured under Article 6 of the Convention, the Commission must consider the proceedings in question as a whole, including the proceedings before the appellate court (see Eur. Court HR, Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, pp. 13-14, para. 18). Moreover, it is not the Commission’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts, and in particular the court of first instance, to assess the evidence before them. The Commission shall only ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see Eur. Court HR, Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, para. 68; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para. 33).

70. Nevertheless, the Commission recalls that the concept of a fair trial includes the fundamental right to adversarial procedure in criminal proceedings. That right means that each party must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other (see Eur. Court HR, Brandstetter v. Austria judgment of 28 August 1991, Series A no. 211, p. 27, paras. 66-67). The Commission has stated in its case-law concerning the rights of an accused under Article 6 para. 3(b) of the Convention that an accused must have at his disposal, for the purposes of exonerating himself or of obtaining a reduction in his sentence, all relevant elements that have been or could be collected by the competent authorities (see No. 8403/78, Comm. Report 14.12.81, D.R. 27, pp. 87-88, paras. 55-58). In the Edwards v. the United Kingdom judgment the Court considered that it is a requirement of fairness under Article 6 para. 1 of the Convention, indeed one which was recognised under English law, that the prosecution authorities disclose to the defence all material evidence for or against the accused and that the failure to do so in that case gave rise to a defect in the trial proceedings (above mentioned Edwards v. the United Kingdom judgment, p. 35, para. 36).

71. The Commission recalls that an issue concerning access to a criminal file was considered, under Article 5 para. 4 of the Convention, by the Court in Lamy v. Belgium (judgment of 30 March 1989, Series A no. 151) in which the Court stated that the appraisal of the need for a remand in custody and the subsequent assessment of guilt are too closely linked for access to documents to be refused in the former case when the law requires it in the latter case. The Court has held that the procedure to review the lawfulness of a detention must ensure equality of arms and be truly adversarial. When the prosecution is familiar with a whole file, a procedure does not afford the detained person with an opportunity of challenging appropriately the reasons relied upon to justify a remand in custody, if counsel is refused access to the file (loc. cit., p. 17, para. 29). In the light of the above, the Commission considers that the requirements of a fair trial within the meaning of Article 6 para. 1 of the Convention are more extensive than those of Article 5 para. 4 of the Convention.

72. The Commission observes that in the present case, there was considerable evidence against the applicants as to their involvement in the offences as charged, and the applicants do not contest that they could put forward all their arguments concerning this evidence during the trial. However, there was relevant material which was, at the time of the trial, withheld from the defence by the prosecution on the grounds of its sensitivity, without reference to the trial judge. This material was then reviewed by the Court of Appeal, upon the ex parte application filed by the prosecution, which confirmed its non-disclosure on the grounds of public interest immunity. The applicants and their lawyers were informed of the ex parte application, but they were unaware even of the category of the material which had been withheld. Nevertheless, one of the areas of information which the applicants have contended may have been withheld was the existence of informants and their claim for financial reward, an element which, if known to the jury, could have affected their assessment of the credibility of prosecution witnesses."

------------------------------------------------------------------------------------------------------------------------------------------------------------

"75. Whatever the category or categories of the material and the reason or reasons for non-disclosure, they were protected by public interest immunity the maintenance of which is not, in certain circumstances, incompatible with the Convention. Insofar as national security could be involved, the Commission recalls that the Court has already recognised that the use of confidential material may be unavoidable where national security is at stake, but national authorities are not free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved (see Eur. Court HR, Chahal v. the United Kingdom case (judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1866, para. 131). In its recent judgment of Tinnelly and Others v. the United Kingdom, concerning restrictions based on national security grounds on the applicants’ rights to have a determination by a court of their civil claims that they were victims of unlawful discrimination, the Court accepted that the protection of national security is a legitimate aim which may entail limitations on the right of access to a court, including for the purposes of ensuring the confidentiality of security-vetting data. The Court concluded that the right guaranteed to an applicant under Article 6 para. 1 of the Convention to submit a dispute to a court or tribunal in order to have a determination of questions of both fact and law cannot be displaced by the ipse dixit of the executive (judgment of 10 July 1998, to be published in Reports 1998, para. 77)."

------------------------------------------------------------------------------------------------------------------------------------------------------------

"77. In the present case, the relevant material in question was never put before the jury whose task was to decide, on all the evidence exhibited before them, whether the applicants were guilty. The Commission must therefore examine the question whether the judicial authorities dealing with the applicants’ case preserved the defence rights to a degree that satisfied the requirements of Article 6 para. 1 of the Convention.

78. The starting point for the Commission’s consideration is the principle established by and evolving in the national case-law that in every case in which the prosecution objects to the disclosure of relevant material on the grounds of public interest immunity, the trial court must balance the public interest in non-disclosure against the importance of the materials in question to the defence (see relevant domestic law and subsequent development in the domestic law)."

------------------------------------------------------------------------------------------------------------------------------------------------------------

"82. In these circumstances, the Commission is of the opinion that, on balance, the proceedings against the applicants taken as a whole cannot be considered to be fair. With regard to the facts that the procedural motion could be heard in camera and that the Court of Appeal’s ruling was not delivered in public, the Commission considers that these were a necessary consequence of the preceding considerations and, having regard to the exemptions provided for under Article 6 para. 1 of the Convention, cannot be said to infringe on the publicity of the trial as a whole. Nonetheless, the latter, in particular, was an aggravating factor in the context of fairness.

CONCLUSION

83. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention in conjunction with Article 6 paras. 3(b) and 3(d) of the Convention."

"1. For a number of years the Criminal Appeal Office has prepared summaries of cases coming before the Court of Appeal (Criminal Division) in order to assist the court in its work. These summaries are entirely objective and do not contain any form of advice as to how the court should deal with a case, or any views on the merits of a case. The facts of the case, as outlined in the summary, are drawn entirely from material already available to counsel in the case.

2. The summaries as they are prepared at present are not suitable for disclosure in their entirety to all counsel in a case. This is because they include material which is specific to individual appellants and confidential as between that appellant and the court, which co-appellants;, or counsel for the Crown, are not entitled to know. However, all summaries written after 1 October 1992 will be in a form which can be disclosed to all parties and, subject to any direction to the contrary in a particular case, will be provided by the Criminal Appeal Office to all counsel in the case."

---------------------------------------------------------------------------------------------------------------------------------------------------------

"6. The summary is provided only so that counsel knows what material the court has before it. The contents of the summary are a matter for the professional judgment of the summary writer but counsel wishing to suggest significant alterations should write to the Registrar of Criminal Appeals. If the Registrar does not agree with the .suggested changes the letter will be put before the court with the summary."-------------------------------------------------------

"30. Under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and, above all, as far as criminal proceedings are concerned, in the accused. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is determinant is whether this fear can be held to be objectively justified (ibid., § 51)

In this regard, the Court has previously held that the mere fact that a judge has also made pre-trial decisions in the case cannot be taken as in itself justifying fears as to his impartiality see the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 22, § 50) . Although this statement referred to systems like the Danish, where investigation and prosecution are exclusively the domain of the police and the prosecution, it must also be of some relevance to systems of an inquisitorial character, such as the Austrian. What matters is the extent and nature of the pre-trial measures taken by the judge (see mutatis mutandis, the De Cubber v. Belgium judgment of 26 October 1984 series A no. 86, pp. 15-16, §§ 29-3O, and the above-mentioned Thorgeirson judgment, Series A no. 239, p. 24, § 53)."

"70. The applicant complained that the court-martial was not an "independent and impartial tribunal" as required by Article 6 § 1, because inter alia all the officers appointed to it were directly subordinate to the convening officer who also performed the role of prosecuting authority (see paragraphs 14-17 and 36-41 above). The lack of legal qualification or experience in the officers making the decisions either at the court-martial or review stages made it impossible for them to act in an independent or impartial manner."

------------------------------------------------------------------------------

------------------------------------------------------------------------------

"72. The Commission found that although the convening officer played a central role in the prosecution of the case, all of the members of the court-martial board were subordinate in rank to him and under his overall command. He also acted as confirming officer, and the court-martial’s findings had no effect until confirmed by him. These circumstances gave serious cause to doubt the independence of the tribunal from the prosecuting authority. The judge advocate’s involvement was not sufficient to dispel this doubt, since he was not a member of the court-martial, did not take part in its deliberations and gave his advice on sentencing in private.

In addition, it noted that Mr Findlay’s court-martial board contained no judicial members, no legally-qualified members and no civilians, that it was set up on an ad hoc basis and that the convening officer had the power to dissolve it either before or during the trial. The requirement to take an oath was not a sufficient guarantee of independence.

Accordingly, it considered that the applicant’s fears about the independence of the court-martial could be regarded as objectively justified, particularly in view of the nature and extent of the convening officer’s roles, the composition of the court-martial and its ad hoc nature. This defect was not, moreover, remedied by any subsequent review by a judicial body affording all the guarantees required by Article 6 § 1, since the confirming officer was the same person as the convening officer, and the reviewing authorities were army officers, the second of whom was superior in rank to the first. The ineffectiveness of the post-hearing reviews was further underlined by the secrecy surrounding them and the lack of opportunity for Mr Findlay to participate in a meaningful way.

73. The Court recalls that in order to establish whether a tribunal can be considered as "independent", regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 15, § 37.

As to the question of "impartiality", there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see the Pullar v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions-1996, p § 30).

The concepts of independence and objective impartiality are closely linked and the Court will consider them together as they relate to the present case.

74. The Court observes that the convening officer, as was his responsibility under the rules applicable at the time, played a significant role before the hearing of Mr Findlay’s case. He decided which charges should be brought and which type of court-martial was most appropriate. He convened the court-martial and appointed its members and the prosecuting and defending officers (see paragraphs 14-15 and 36-37 above).

Under the rules then in force, he had the task of sending an abstract of the evidence to the prosecuting officer and the judge advocate and could indicate passages which might be inadmissible. He procured the attendance at trial of the witnesses for the prosecution and those "reasonably requested" by the defence. His agreement was necessary before the prosecuting officer could accept a plea to a lesser charge from an accused and was usually sought before charges were withdrawn (see paragraphs 38 and 39 above).

For these reasons the Court, like the Commission, considers that the convening officer was central to Mr Findlay’s prosecution and closely linked to the prosecuting authorities.

75. The question therefore arises whether the members of the court-martial were sufficiently independent of the convening officer and whether the organisation of the trial offered adequate guarantees of impartiality.

In this respect also the Court shares the concerns of the Commission. It is noteworthy that all the members of the court-martial, appointed by the convening officer, were subordinate in rank to him. Many of them, including the President, were directly or ultimately under his command (see paragraph 16 above). Furthermore, the convening officer had the power, albeit in prescribed circumstances, to dissolve the court-martial either before or during the trial (see paragraph 40 above).

76. In order to maintain confidence in the independence and impartiality of the court, appearances may be of importance. Since all the members of the court-martial which decided Mr Findlay’s case were subordinate in rank to the convening officer and fell within his chain of command, Mr Findlay’s doubts about the tribunal’s independence and impartiality could be objectively justified (see, mutatis mutandis, the Sramek v. Austria judgment of 22 October 1984, Series A no. 84, p. 20, § 42).

77. In addition, the Court finds it significant that the convening officer also acted as "confirming office". Thus, the decision of the court-martial was not effective until ratified by him, and he had the power to vary the sentence imposed as he saw fit (see paragraph 48 above). This is contrary to the well-established principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of "tribunal" and can also be seen as a component of the "independence" required by Article 6 § 1 (see, mutatis mutandis, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, § 45).

78. The Court further agrees with the Commission that these fundamental flaws in the court-martial system were not remedied by the presence of safeguards, such as the involvement of the judge advocate, who was not himself a member of the tribunal and whose advice to it was not made public (see paragraphs 45-46 above), or the oath taken by the members of the court-martial board (see paragraph 35 above).

79. Nor could the defects referred to above (in paragraphs 75 and 77) be corrected by any subsequent review proceedings. Since the applicant’s hearing was concerned with serious charges classified as "criminal" under both domestic and Convention law, he was entitled to a first instance tribunal which fully met the requirements of Article 6 § 1 (see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, pp. 16-18, §§ 31-32).

80. For all these reasons, and in particular the central role played by the convening officer in the organisation of the court-martial, the Court considers that Mr Findlay’s misgivings about the independence and impartiality of the tribunal which dealt with his case were objectively justified."

------------------------------------------------------------------------------

"In conclusion, there has been a violation of Article 6 § 1 of the Convention."

"51. The applicant does not agree that the Royal Court constituted an "independent and impartial tribunal" for the purposes of Article 6 para. 1 of the Convention."

52. The Commission recalls that the civil "limb" of Article 6 para. 1 of the Convention applies to disputes over a "right" which can be said, at least on arguable grounds, to be recognised in domestic law. The dispute must be genuine and serious, and may relate not only to the existence of a right, but also to its scope and the manner of its exercise. The result of the proceedings must be decisive for the right in question (see Eur. Court BR, Zander v. Sweden judgment of 25 November 1993, Series A no. 229-P, p. 38, para. 22)".

------------------------------------------------------------------------------------------------------------------------------------------------------------

"54. The Commission must determine whether the Royal Court constituted an "independent and impartial tribunal" within the meaning of Article 6 para. 1 of the Convention.

55. As a preliminary point, the Commission would recall that in the case of Jon Kristinsson v. Iceland, it did not accept the Icelandic Government’s contentions that the combination of investigative and judicial power in one person was compatible with Article 6 of the Convention due to the special historical and geographical conditions obtaining in Iceland (Jon Kristinsson v. Iceland, No. 12170/96, Comm. Rep. 8.3.99, paras. 43 and 49-59, in Eur. Court BR, Series A no. 171-B; the case settled before the Court). In the present case, the Commission finds no reasons related to the historical or geographical conditions in Guernsey which could affect its reasoning in this regard.

56. In determining whether a body can be considered to be independent, regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence. As to the question of impartiality, a distinction must be drawn between a subjective test, which concerns the conviction of a judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Eur. Court BR, Langborger v. Sweden judgment of 22 June 1999, Series A no. 155, p. 16, para. 32 with further references).

57. As to the question of the subjective impartiality of the Royal Court, the Commission notes the Government’s submission that there is no suggestion of actual personal bias by any member of the Royal Court in the determination of the applicant’s case and the applicant has not argued any personal bias on the part of the members of the Royal Court. The Commission therefore sees no reason in the present case to doubt the personal impartiality of the Bailiff or the Jurats.

58. As to the independence of the Royal Court, the Commission notes that the Bailiff is appointed by the Sovereign and holds office during Her Majesty’s pleasure subject to a retirement age of 70 years. The Bailiff’s irremovability does not have "formal" recognition in law but is dependent on direction by Her Majesty. Further, the Bailiff has no role in the IDC, and is not involved in the appointment of the civil servants who make up the IDC. The Jurats are appointed by the States of Election (the electoral college responsible for electing Jurats) and hold office on a permanent basis with a retirement age of 70 years which can be extended to 75 years subject to the agreement of their colleagues. A Jurat may only be dismissed by Her Majesty and not by the executive. There are thus a number of guarantees of structural independence and impartiality.

59. However, these objective guarantees of independence and impartiality do not satisfy the requirements of Article 6 para. 1 taken alone. In addition, the case-law requires the body to present "an appearance of independence", and there must be sufficient guarantees "to exclude any legitimate doubt" as to the impartiality of the judge (see the aforementioned Langborger judgment, p. 16, para. 32). The Commission will consider these issues together (see Eur. Court BR, Incal v. Turkey judgment of 9 June 1998, Reports 1998 par. 65).

60. The Commission notes the plethora of important positions held by the Bailiff in Guernsey. The Bailiff presides over the States of Election, (where he has a casting vote), the States of Deliberation (the Island legislature, where he also has a casting vote), the Royal Court and the Court of Appeal. He is the head of the administration of the Island and presides over four States Committees including the Appointments Board, the Legislation Committee (which deals with the drafting of legislation) and the Rules of Procedure Committee. The Commission also notes that the Jurats, who decide the cases before the Royal Court, are appointed by the States of Election and that the Bailiff is the President of the States of Election and has a casting vote in the event of an equality of votes. The Commission further notes that no appeal lay against the decision of the IDC beyond that of the Royal Court and that therefore the Royal Court was the final - and, indeed, the sole - court for the applicant’s case.

61. The position in the present case was therefore that when the applicant appeared before the Royal Court on 6 June 1995, the principal judicial officer who sat on his case, the Bailiff, was not only a senior member of the judiciary of the Island, but was also a senior member of the legislature - as President of the States of Deliberation - and, in addition, a senior member of the executive - as titular head of the administration presiding over a number of important committees. It is true, as the Government point out, that the Bailiff’s other functions did not directly impinge on his judicial duties in the case and that the Bailiff spends most of his time in judicial functions, but the Commission considers that it is incompatible with the requisite appearances of independence and impartiality for a judge to have legislative and executive functions as substantial as those in the present case. The Commission finds, taking into account the Bailiff’s roles in the administration of Guernsey, that the fact that he has executive and legislative functions means that his independence and impartiality are capable of appearing open to doubt.

62. The Commission finds that, in the light of its finding regarding the Bailiff, it is not necessary to examine separately the role of the Jurats.

63. The Commission accordingly finds that, in the present case, the Royal Court did not satisfy the requirements of independence and impartiality and that there has been a breach of Article 6 para. 1 of the Convention."

"While I see force in the argument advanced in the Dissenting Opinion of Mr Alkema that the Convention should not be interpreted in such a way as to impose on a small island community such as Guernsey elaborate constitutional structures similar to those which exist in large States, I am unable to accept that this can justify a departure from the requirement in Article 6 that a tribunal should be independent and impartial and, in particular, that it should present an appearance of independence (see eg. the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 15, para. 37).

In my view these requirements were not met for the reasons given in the opinion of the majority of the Commission. I wish, however, to make clear that my view is confined to cases such as the present, where the proceedings in which the Bailiff sits in a judicial capacity relate to the acts or decisions of the Executive - in this case, the refusal of the IDC to grant permission for a change of use. Different considerations would in my view apply where the Bailiff sat in cases involving a dispute between private parties, in which there was no lack of the requisite appearance of independence."

"69. The Commission also notes the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the PCA. In particular, the Commission notes that under section 105(4) of the Act the PCA are to have regard to any guidance given to them by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings.

70. The Commission finds that the system of investigation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13. The Commission accordingly finds that there has been a violation of Article 13 of the Convention."

"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."

"If the court is so satisfied then it has to consider whether, in the exercise of its discretion, a Civil Proceedings Order, in this case, should be made and, if that becomes material, whether indefinitely or otherwise."

"The matter which to my mind, is relevant in this case is that where the power to be exercised involves a charge made against the person who is dismissed, by that I mean a charge of misconduct, the principles of natural justice have to be observed before the power is exercised."------------------------------------------------------------------------------------------------------------------------

"No one, I think, disputes that three features of natural justice stand out––(1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges. The first does not arise in the case before your Lordships, but the two last most certainly do, and the proceedings before the watch committee, therefore, in my opinion, cannot be allowed to stand."----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"I cannot see that the general words of the statute are, in the light of the authorities as I understand them, wide enough to cover a case of this character where allegations of misconduct are involved resulting in the loss of an office and an element of punishment for offences committed. There is imposed a clog on the discretion in that it cannot be exercised arbitrarily without regard to natural justice."---------------------------------------------------------------------------------------------------------------------------------------------------"I must retreat to the last refuge of one confronted with as difficult a problem as this, namely, that each case depends on its own facts, and that here the deprivation of a pension without a hearing is on the face of it a denial of justice which cannot be justified upon the language of the section under consideration."

------------------------------------------------------------------------------"The Chief Constable should have directed his mind to the criteria laid down in the regulation in accordance with the appropriate principles of natural justice. He did not do so, and I think it only too likely that this was precisely the belief that his discretion was absolute which led to the cavalier treatment to which, in any event, the respondent was subjected."

To this treatment I now come. Once it is established as was conceded here, that the office held by the chief constable was of the third class enumerated by Lord Reid in Ridge v Baldwin [1963] 2 All ER 66 at 72. [1964] AC 40 at 66, it becomes clear, quoting Lord Reid, that there is ’an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation’."

"So far as section 51 is concerned, there is no power in that section or elsewhere in the Act for the court to consider whether an order made under that section should be discharged."----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"So far as section 42 of the 1981 Act is concerned (which, as I say, is not directly relevant to Miss Rohrberg’s case, since her order was made under the 1925 Act) it is in all material respects save one the same as the corresponding section under the 1925 Act. That exception is in subsection (2), which provides that an order under section (1) may provide that it is to cease to have effect at the end of the specified period, but otherwise remains in force indefinitely. If there is any assistance to be obtained from the 1981 Act it is to suggest that the scheme of this particular statutory provision is that unless the order itself contains some limitation it is indefinite in duration.

Accordingly, I would hold, as did the Divisional Court, that neither the High Court, nor the Divisional Court as part of it, has any jurisdiction to entertain an application to discharge an order, made either under section 51 of the 1925 Act or under section 42 of the 1981 Act, although there is undoubtedly a power in the Court of Appeal to entertain an appeal limited to the issue of whether the order should have been made originally."

"I would for my part endorse the division of the potential 15-year disqualification period into three brackets,"----------------------------"(i) the top bracket of disqualification for periods over 10 years should be reserved for particularly serious cases."-------------------"(ii) The minimum bracket of two to five years’ disqualification should be applies where, though disqualification is mandatory, the case is relatively, not very serious. (iii) The middle bracket of disqualification for from six to 10 years should apply for serious cases which do not merit the top bracket."

"There are now three final matters to be decided. Should we in the exercise of our discretion make a civil proceedings order? Should any order be limited or unlimited in time?"-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

"Next, the length of the order. The power of the Court to make an order limited in time was first introduced in 1981, and we were told by Mr Jay that until now it has never been exercised. He expressed concern that if a limited order was made a vexatious litigant might seek to revive old causes of grievance by assertions that his or cause of action had been concealed by equitable fraud so as to prevent time running under the Limitation Act.

It appears to us that this in itself is no good reason for not making a time-limited order if we considered that the justice of the case demanded it. If litigation we regard as vexatious was revived after a time-limited order expired, the Attorney-General could always come back to this court for appropriate relief, and it may be desirable when the wording of the statute is next under review to make it completely clear that the court could grant such relief notwithstanding that the once vexatious litigant had not had time to satisfy the criteria in Section 42(1) all over again since his or discharge from a time-limited order. In our judgment, given that the power to make a time-limited order exists, we ought to exercise it in this case."---------------------------------------------------------------------------------------------------------------------------------"Mr Price is now 53. Provided that he is prevented from embarking on civil proceedings (or making applications in civil proceedings) for 15 years, we consider that an appropriate balance would be struck between the need to bring the present nuisance very firmly to an end and the desirability of removing the restriction from Mr Price at a time when it is no longer likely to serve any very useful purpose. We therefore make a civil proceedings order against him for 15 years."

"However, it does appear to me that there is some merit in the submissions advanced on Mr Yeo’s behalf by the Citizens Advice Bureau. It is true to say that this case is not as bad as many that one sees and it is true also that Mr Yeo has not shown any propensity to direct actions against a great variety of people in an indiscriminate manner. I am satisfied, as I have said, that the trustees must be protected from my further actions arising out of this will, but I am not persuaded that it is necessary to impose an order which will be of indefinite duration.

We were helpfully referred by Mr Jay to the case of the Attorney-General v Price [1997] COD 250. In that case the court drew attention to the power of the court to make an order for a limited time period. That power came into existence in 1981 under the Supreme Court Act, but had, until 1997, not apparently been exercised. I have considered what period of time would be appropriate to give the trustees, and any other potential defendant who might be affected by an action arising out of Mr Ellis’s will, the necessary protection. I consider that any relevant limitation period will have expired and a suitable interval thereafter will also have passed if an order for 10 years from today were to be made. I consider that such an order would be appropriate. It would give the trustees the protection which they plainly need. It would cause Mr Yeo to cease wasting public resources and give him an opportunity to recover from the anger which he has plainly felt in the past few years as a result of the events of 1994. It would have the advantage of allowing him in the later years of his life freedom of access to the courts. I am conscious of how serious a matter it is to deprive a citizen of the right of access to the court and, in my judgment, an order for a period of 10 years would provide an appropriate balance between the interests of the trustees and the public, on the one hand, and Mr Yeo on the other. I would propose a civil proceedings order for a term of 10 years.

LORD JUSTICE ROSE: I agree. Accordingly, we shall make a civil proceedings order under section 42 of the Supreme Court Act 1981 for a period of 10 years from today."

------------------------------------------------------------------------------"For the reasons given I would make a civil proceedings order here, as is sought, without limit of time."

------------------------------------------------------------------------------"The guiding principles were recently restated by the European Court of Human Rights in paragraph 59 of its judgment in Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 in the following terms:

------------------------------------------------------------------------------"It is also clear that art 10 may be used when the court is contemplating how a discretion is to be exercised. Thus in A-G v Guardian Newspapers Ltd [1987] 3 All ER 316 at 355, [1987] 1 WLR 1248 at 1296 Lord Templeman referred to art 10 when considering whether the interference with the freedom of expression which the grant of an interlocutory injunction would entail was ’necessary in a democratic society’ for any of the purposes specified in para (2) of art 10."

------------------------------------------------------------------------------"Nonetheless it is right that this court should bear in mind that an order under section 42 of the Supreme Court Act 1981 is a formidable one which should not be taken lightly by any court, because it restricts a particular litigant in a way in which the remainder of the public are not restricted. Therefore to that extend it impinges upon his rights as an individual and reflects upon him as a citizen."

"As is well-known, the purpose of an order under section 42 is to protect persons who are being plagued by vexatious litigants, whether in civil or in criminal proceedings, but the court of course will always be exceedingly careful to be satisfied that the basis for making an order is made out, because it is a strong interference with a citizen’s right to access to the court."

------------------------------------------------------------------------------"It goes without saying that the jurisdiction is important but also draconian and has to be exercised with great care."-------------------

"I accept, of course, that the imposition of an order under section 42 is a serious infringement of a citizen’s right of access to the courts;"---------------------------------------------------------------------

Every person holding the nationality of a Member State shall be a citizen of the Union.

"The only matter that might have influenced us not to make a civil proceedings order was the consideration that Mr Price, like the litigant in Re Vernazza [1959] 1 WLR 622 is a man with a single all-pervading grievance and a civil proceedings order would have the effect of obliging him to pay a £50 premium to the State (being the current fee for a High Court application in the Queen’s Bench and Chancery Divisions) whenever he sought to issue civil proceedings of any kind or to make an application in any such proceedings. There is, however, no evidence that he has ever been involved in any civil proceedings before the Novell dispute blew up, nor any evidence that he wishes or intends to get himself involved in any non-Novell proceedings in the future, so that the weight we should give to this factor in the exercise of our discretion is more limited than it otherwise might have been.

We enquired of Mr Jay whether the High Court had in its inherent jurisdiction made orders against vexatious litigants before the creation of the broadbrush statutory remedy in the Vexatious Proceedings Act 1896. After taking instructions overnight he told us that the Law Officers’ Department knew of five, or possibly six cases between 1888 and 1896 in which the court had made a blanket order against a vexatious litigant of the type that was given a codified form in the 1896 Act. Since the remedy was now codified and the statutory remedy could not be limited so as to apply to legal proceedings against a particular defendant only (see Re Hutchison [1929] WN 102) he requested us not to have recourse to the inherent jurisdiction of the court to make an individualised order limited to "Novell litigation," and if Parliament, despite the influence of Article 6 of the European Convention on Human Rights, has not given the High Court a more flexible range of remedies against vexatious litigants it does not appear to us to be appropriate for this Court, on the basis of limited argument and with evidence before it of the Parliamentary preference, to embark on such a course, particularly if the Attorney-General does not invite us to consider it. We saw evidence, by chance, in a case we heard the day after the hearing in the present case finished, of the willingness of the Attorney-General to invoke the inherent jurisdiction of the court in a case where the remedies provided by Section 42 of the 1981 Act were perceived to be insufficient. On 22nd January 1997, in A-G v Landau, this court granted a permanent injunction on the application of the Attorney-General to restrain a vexatious litigant from issuing statutory demands as a prelude to bankruptcy proceedings.

We also took into account the possible administrative and other inconvenience involved in making an order limited to a single category of vexatious litigation. We considered, for example, vexatious arguments as to whether any particular litigation or application was caught or not caught by the terms of a limited order. Taking all these factors into consideration we considered it just, in the exercise of our discretion, to make a statutory order in the usual way."

------------------------------------------------------------------------------"4 I should make it clear that we have not decided that the course of the Respondent’s litigation against his family would justify an order under section 42, having by no means heard full argument. But it is right to say that the voluminous papers, which of course we have studied with some care, disclose a powerful prima facie case if that litigation is looked at in isolation. It is clear that the court has no power to make a split or partial order under section 42 prohibiting the Respondent from litigating only against named parties: Hutchinson [1929] WN 102. That case was decided under an earlier statute, but its effect, as Mr Jay accepts, is unaltered by the somewhat different terms of the current section.

------------------------------------------------------------------------------"If in every such case, the litigant could simply escape section 42(4) of the Act by making a renewed application to the Court of Appeal that section would be emasculated and the obvious intention of Parliament frustrated. Ord. 59, r. 14(3) must in our judgment be read subject to section 42(3) and (4) of the Act, the plain intention of which is that jurisdiction to give or refuse leave shall be entrusted to the High Court and its decision shall be final."-----------------------------------------------------------------------