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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ewing & Ors, R (on the application of) v Department of Constitutional Affairs [2006] EWHC 504 (Admin) (22 February 2006) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2006/504.html Cite as: [2006] EWHC 504 (Admin), [2006] 2 All ER 993 |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF TERENCE PATRICK EWING | (1ST CLAIMANT) | |
PETER HENRY PRANKERD | (2ND CLAIMANT) | |
PATRICIA YVONNE PRANKERD | (3RD CLAIMANT) | |
-v- | ||
DEPARTMENT OF CONSTITUTIONAL AFFAIRS | (DEFENDANT) |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR TIM EICKE (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
____________________
Crown Copyright ©
Introduction
Factual and Legal Background
"(1) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground-
(a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or(b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another...""the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order..."
"(1A) In this section-
"'civil proceedings order' means an order that-
(a) no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made;(b) any civil proceedings instituted by him in any court before the making of the order shall not be continued by him without the leave of the High Court; and(c) no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court..."
"(3) Leave for the institution or continuance of, or for the making of an application in, any Civil proceedings by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application..."
"(4) No appeal shall lie from a decision of the High Court refusing leave required by virtue of this section..."
"The application notice, together with any written evidence, will be placed before a High Court judge who may:
(1) without the attendance of the applicant make an order giving the permission sought;
(2) give directions for further written evidence to be supplied by the litigant before an order is made on the application;
(3) where the remedy sought, or the grounds advanced, substantially repeat those submitted in support of a previous application which has been refused, make an order dismissing the application without a hearing; or
(4) in any case where (3) does not apply, give directions for the hearing of the application."
As a result, vexatious litigants making an application for leave under Section 42(3) were entitled to an oral hearing in all cases except where their application was substantially a repetition of an earlier unsuccessful application.
"I am concerned that the Court's time is being wasted by the requirement that, where a vexatious litigant seeks permission to begin or continue or make any application in proceedings, there is generally a need to require an oral hearing.
"The problem lies in the Practice Direction at 3PD.7.6(3) which enables the application to be dismissed without a hearing only 'where the remedy sought, or the grounds advanced, substantially repeat those submitted in support of a previous application which has been refused'. Otherwise, there must be an oral hearing (7.6(4)).
"Most applications by vexatious litigants are totally without merit and an oral application cannot achieve anything ... I had two applications in my list yesterday, both of which were completely hopeless, by a litigant who failed to appear.
"The ECHR does not require an oral hearing and I see no reason why judges should have to waste valuable court time in listening to unmeritorious applications which are bound to fail. If there are doubts whether there is an arguable claim, an oral hearing can be directed, but if the application is obviously bound to fail, I see no reason why it could not be dismissed on paper..."
"'(3) make an order dismissing the application without a hearing; or
(4) give directions for the hearing of the application.'."
"The implications of the amendment to paragraph 7.6 of the first Practice Direction to Part 3 are significant not merely for these Applicants but for all vexatious litigants. The claim raises an important issue. The submissions set out in the Treasury Solicitor's letter dated 17th March 2005 on behalf of the Defendant may well prove to be correct, but the Applicants should be given an opportunity to argue that they are wrong."
When dealing with the application for permission to apply for judicial review, I said:
"Permission is granted in respect of the First and Second Claimants, and refused in respect of the Third Claimant upon the basis that, for the reasons set out in the Defendant's Grounds of Resistance, she has no interest in the subject matter of the claim."
I observed:
"The Defendant's submission that this Claim has no reasonable prospect of success may well prove to be correct, but the lawfulness of the amendment to the Practice Direction is an important issue affecting all vexatious litigants. These vexatious litigants should be given an opportunity to obtain a definitive ruling from the Court."
(1) Ultra Vires
"1.-(1) There are to be rules of court (to be called 'Civil Procedure Rules') governing the practice and procedure to be followed in-
(a) the civil division of the Court of Appeal,(b) the High Court, and(c) county courts.
"(2) Schedule 1 (which makes further provision about the extent of the power to make Civil Procedure Rules) is to have effect.
"(3) The power to make Civil Procedure Rules is to be exercised with a view to securing that the civil justice system is accessible, fair and efficient."
Section 2 establishes the Civil Procedure Rule Committee to make and, where necessary, amend the Rules. The Rules are to be made by a statutory instrument subject to annulment pursuant to a resolution of either House of Parliament (see Section 3). Section 5(1) states that:
"Practice directions may provide for any matter which, by virtue of paragraph 3 of Schedule 1, may be provided for by Civil Procedure Rules."
Section 9 is an interpretation section. In the 1997 Act, "Practice Directions":
"...means directions as to the practice and procedure of any court within the scope of Civil Procedure Rules."
Paragraph 3 of Schedule 1 deals with the removal of proceedings, for example between different divisions of the High Court and between County Courts. Paragraph 6 is concerned with Practice Directions and provides:
"Civil Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions."
"In the High Court, practice directions are issued by the heads of division in the exercise of inherent power. Rules in the CPR may, instead of providing for any matter which may be provided for in the CPR, refer to provision made about that matter by directions (see Sched.1, para.6). Among the matters which may be dealt with in the CPR is the removal of proceedings from one court to another as permitted by para.3 of Sched.1. Subs.(1) makes it clear that that matter can be dealt with by practice directions."
"Practice directions are not the responsibility of the Civil Procedure Rule Committee, whose responsibility under section 2 of the Civil Procedure Act 1997 is limited to making civil procedure rules. Practice directions are subordinate to the rules: see paragraph 6 of Schedule I to the 1997 Act. They are, in my view, at best a weak aid to the interpretation of the rules themselves."
"Unlike the Lord Chancellor's orders under his 'Henry VIII' powers, the Civil Procedure Rules 1998 themselves and the 1991 Remuneration Regulations, the Practice Directions are not made by Statutory Instrument. They are not laid before Parliament or subject to either the negative or positive resolution procedures in Parliament. They go though no democratic process at all, although if approved by the Lord Chancellor he will bear ministerial responsibility for them to Parliament. But there is a difference in principle between delegated legislation which may be scrutinised by Parliament and ministerial executive action. There is no ministerial responsibility for Practice Directions made for the Supreme Court by the Heads of Division. As Professor Jolowicz says ... 'It is right that the court should retain its power to regulate its own procedure within the limits set by statutory rules, and to fill in gaps left by those rules; it is wrong that it should have power actually to legislate'."
"In our judgment, the provisions in the practice direction as to the giving of estimates of costs at various stages of the litigation are made pursuant to the power in the court to regulate its own procedure within the limits set by the statutory rules and to fill in gaps left by those rules."
"It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizens's right of access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right. But I must explain, as I have indicated I would, what in my view the law requires by such a permission. A statute may give the permission expressly; in that case it would provide in terms that in defined circumstances the citizen may not enter the court door. In Ex Parte Leech [1994] QB 198 the Court of Appeal accepted, as in its view the ratio of their Lordships' decision in Raymond v Honey [1983] 1 AC vouchsafed, that it could also be done by necessary implication. However for my part I find great difficulty in conceiving a form of words capable of making it plain beyond doubt to the statute's reader that the provision in question prevents him from going to court (for that is what would be required), save in a case where that is expressly stated. The class of cases where it could be done by necessary implication is, I venture to think, a class with no members."
Laws J continued, at page 586E:
In my judgment the effect of the Order of 1996 is to bar absolutely many persons from seeking justice from the courts. Mr Richards' elegant and economical argument contains an unspoken premise. It is that the common law affords no special status whatever to the citizen's right of access to justice. He says that the statute's words are unambiguous, are amply wide enough to allow what has been done, and that there is no available Wednesbury complaint. That submission would be good in a context which does not touch fundamental constitutional rights. But I do not think that it can run here. Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically in effect by express provision permits the executive to turn people away from the court door. That has not been done in this case."
Rose LJ said:
"There is nothing in the section or elsewhere to suggest that Parliament contemplated, still less conferred, a power for the Lord Chancellor to prescribe fees so as totally to preclude the poor from access to the courts. Clear legislation would in my view be necessary to confer such a power and there is none."
(2) Natural Justice or Fairness
"16. I am prepared to accept, in agreement with counsel and the Divisional Court, that in the unique situation addressed by paragraphs 3 and 6 of Schedule 22, fairness will not, in many cases, require an oral hearing, to which many existing prisoners may in any event waive their right. In those cases where fairness does require an oral hearing, however, and the respondent's case may or may not be one such, it seems to me that paragraph 11(1), in precluding the possibility of an oral hearing at first instance, is incompatible with the Convention..."
"17. I agree with the Divisional Court that paragraph 11(1) is incompatible with the Convention. The Secretary of State expressly accepted that, if the House reached that conclusion, paragraph 11(1) should be read subject to an implied condition that the High Court judge has the discretion to order an oral hearing, where such hearing is required to comply with a prisoner's rights under article 6(1) of the Convention. Thus the discretion may be exercised when, and only when, an oral hearing is necessary to meet the requirement of fairness."
"What procedural requirements are necessary to achieve fairness when the Army Board considers a complaint of this kind? In addressing this issue, counsel made much of the distinction between judicial and administrative functions. Were it necessary to decide in those terms the functions of the Army Board when considering a race discrimination complaint, I would characterise it as judicial rather than administrative..."
"A body required to consider and adjudicate upon an alleged breach of statutory rights and to grant redress when necessary seems to me to be exercising an essentially judicial function. It matters not that that body has other functions which are non-judicial: see Reg. v Secretary of State for the Home Department, Ex parte Tarrant [1985] QB 251, 268.
"However, to label the board's function either 'judicial' or 'administrative' for the purpose of determining the appropriate procedural regime is to adopt too inflexible an approach. We were referred to many decided cases, but the principles laid down in Ridge v Baldwin [1964] AC 40 are well summarised by Sir William Wade in his Administrative Law, 6th ed. (1988), pp. 518-519:
"'[Lord Reid] attacked the problem at its root by demonstrating how the term 'judicial' had been misinterpreted as requiring some superadded characteristic over and above the characteristic that the power affected some person's rights. The mere fact that the power affects rights or interests is what makes it 'judicial', and so subject to the procedures required by natural justice. In other words, a power which affects rights must be exercised 'judicially', ie fairly, and the fact that the power is administrative does not make it any the less 'judicial' for this purpose. Lord Hodson put this point very clearly: "...the answer in a given case is not provided by the statement that the giver of the decision is acting in an executive or administrative capacity as if that were the antithesis of a judicial capacity. The cases seem to me to show that persons acting in a capacity which is not on the face of it judicial but rather executive or administrative have been held by the courts to be subject to the principles of natural justice."'
"This approach was echoed by Lord Lane CJ in Reg v Commission for Racial Equality, Ex parte Cottrell & Rothon [1980] 1 WLR 1580, 1587. He said:
"'It seems to me that there are degrees of judicial hearing, and those degrees run from the borders of pure administration to the borders of the full hearing of a criminal cause or matter in the Crown Court. It does not profit one to try to pigeon-hole the particular set of circumstances either into the administrative pigeon-hole or into the judicial pigeon-hole. Each case will inevitably differ, and one must ask oneself what is the basic nature of the proceeding which is going on here.'
"What, then are the criteria by which to decide the requirements of fairness in any given proceeding? Authoritative guidance as to this was given by Lord Bridge of Harwich in Lloyd v McMahon [1987] AC 625, 702. He said:
"'My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness." [see pages 185 to 186]
"The hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing: see Local Government Board v Arlidge [1915] AC 120, 132-133; Reg v Race Relations Board, Ex parte Selvarajan [1975] 1 WLR 1686, 1694B-D and Reg v Immigration Appeal Tribunal, Ex parte Jones (Ross) [1988] 1 WLR 477, 481B-G. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. It will also depend upon whether there are substantial issues of fact which cannot be satisfactorily resolved on the available evidence. This does not mean that whenever there is a conflict of evidence in the statements taken, an oral hearing must be held to resolve it. Sometimes such a conflict can be resolved merely by the inherent unlikelihood of one version or the other. Sometimes the conflict is not central to the issue for determination and would not justify an oral hearing. Even when such a hearing is necessary, it may only require one or two witnesses to be called and cross-examined."
"The Parole Board's acceptance of a public law duty to act in a procedurally fair manner when resolving challenges to licence revocations prompts the inevitable question: what does fairness in this context require? Both sides referred to the answer given by Lord Mustill in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, 560. He there made plain that the requirements of fairness change over time, are flexible and are closely conditioned by the legal and administrative context."
Having considered the characteristics of the Board's decisions in recall cases, Lord Bingham said in paragraph 35:
"The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society."
"... what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."
(3) Article 6 of the Convention
"(b) The specific refusal of consent to the applicant's action to proceed, dated 5 December 1984, cannot be said to have determined his civil rights and obligations as it constituted a mere procedural step before the applicant was able to bring an action in the civil courts... It follows that the procedure by which consent was to be obtained did not attract the procedural guarantees of Article 6 of the Convention, and this aspect of the application must be dismissed as being manifestly ill-founded within the meaning of Article 27 para.2 of the Convention.
"(c) The refusal of leave by the single judge of the Court of Session to bring an action against a policeman did, however, restrict the applicant's access to court.
"The Commission recalls that it has already discussed the question of restrictions on the bringing of actions by vexatious litigants, in its Report under Article 31 of the Convention in the Golder case (Golder v United Kingdom, Comm. Report 1.6.73, para.95... ) where the Commission found, by way of obiter dictum, as follows:
"'... Vexatious litigants in the United Kingdom are persons whom the courts treat specially because they have abused their right of access. But, having been declared a vexatious litigant, it is open to a person to prove to the court that he has a sustainable cause of action and he will then be allowed to proceed. The control of vexatious litigants is entirely in the hands of the courts ... Such control must be considered as an acceptable form of judicial proceedings.'
"The European Court of Human Rights, in its judgment in the Golder case ... did not make specific reference to the question of vexatious litigants, but did hold as follows:
"'36. ... Article 6 para. 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the 'right to a court', of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only. To this are added the guarantees laid down by Article 6 para. 1 as regards both the organisation and composition of the court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing.'
"The court further decided (ibid at para. 38) that such a right must, however, be subject to implied limitations:
"'38. The court considers ... that the right of access to the courts is not absolute. As this is a right which the Convention sets forth (See Articles 13, 14, 17 and 25) without, in the narrower sense of the term, defining, there is room, apart from the bounds delimiting the very content of any right, for limitations permitted by implication.
"'The first sentence of Article 2 of the Protocol of 20 March 1952, which is limited to providing that 'no person shall be denied the right to education', raises a comparable problem. In its judgment of 23 July 1968 on the merits of the case relating to certain aspects of the laws on the use of languages in education in Belgium, the Court ruled that:
"'"The right to education ... by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention..."'"
"'These considerations are all the more valid in regard to a right which, unlike the right to education, is not mentioned in express terms...'"
"The question of access to court has been further discussed by the Court in the Ashingdane judgment (Eur. Court H.R., Ashingdane judgment of 28 May 1985 ...) in which the Court held as follows:
"'Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access 'by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals' (see the above-mentioned Golder judgement, p.19, para. 38, quoting the Belgian-Linguistic judgment of 23 July 1968...'"
"'In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention's requirements rests with the Court, it is no part of the Court's function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field...'"
"Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see the above-mentioned Golder and Belgian Linguistic judgments, ibid., and also the Winterwerp judgment... Furthermore, a limitation will not be compatible with Article 6 para. 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.'
"In the present case the Commission is only called upon to determine whether, following the Golder and Ashingdane judgments, the applicant's access to court was restricted to such an extent that the very essence of the right was impaired, whether the aim pursued was legitimate and whether the means employed to achieve that aim were proportionate to the aim itself.
"The Commission is not called on to discuss the merits of the imposition of the vexatious litigant order on the applicant.
"The vexatious litigant order of 16 December 1982 did not limit the applicant's access to court completely, but provided for a review by a senior judge of the Scottish judiciary of any case the applicant wished to bring. The Commission considers that such a review is not such as to deny the essence of the right of access to court; indeed, some form of regulation of access to court is necessary in the interests of the proper administration of justice and must therefore be regarded as a legitimate aim..."
"Further, the Commission finds that in the present case the means employed in regulating access to court by the applicant were not disproportionate to the aim of ensuring the proper administration of justice (cf. the reference to the Commission's Report in Golder case, supra) and it does not appear from the applicant's submissions that the judges's refusal of consent to commence proceedings was in any way arbitrary or unreasonable.
"It follows that the applicant's complaint in this respect must be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention."
"29. The Court reiterates that in proceedings before a court of first and only instance the right to a 'public hearing' under Article 6.1 entails an entitlement to an 'oral hearing' unless there are exceptional circumstances that justify dispensing with such a hearing (see for instance [and the earlier cases are cited])."
"The exceptional character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. It does not mean that refusing to hold an oral hearing may be justified only in rare cases. For example, the Court has recognised that disputes concerning benefits under social-security schemes are generally rather technical, often involving numerous figures, and their outcome usually depends on the written opinions given by medical doctors. Many such disputes may accordingly be better dealt with in writing than in oral argument. Moreover, it is understandable that in this sphere the national authorities should have regard to the demands of efficiency and economy."
"The applicants submit that the presumption in favour of a private hearing in cases under the Children Act should be reversed. However, while the Court agrees that Article 6(1) states a general rule that civil proceedings, inter alia, should take place in public, it does not find it inconsistent with this provision for a State to designate an entire class of case as an exception to the general rule where considered necessary in the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties, although the need for such a measure must always be subject to the Court's control. The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by Article 6(1).
"Furthermore, the English tribunals have a discretion to hold Children Act proceedings in public if merited by the special features of the case, and the judge must consider whether or not to exercise his or her discretion in this respect if requested by one of the parties."
(4) Article 14
"Article 14 (art. 14) protects individuals placed in similar situations from discrimination in their enjoyment of their rights under the Convention and its Protocols. However, a difference in the treatment of one of these individuals will only be discriminatory if it 'has no objective and reasonable justification', that is if it does not pursue a 'legitimate aim' and if there is no 'reasonable relationship of proportionality between the means employed and the aim sought to be realised'"
Conclusion