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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Somerset Constabulary v Gray [2019] EWCA Civ 1675 (11 October 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1675.html Cite as: [2019] EWCA Civ 1675 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE IRWIN
and
LORD JUSTICE NEWEY
____________________
THE CHIEF CONSTABLE OF AVON AND SOMERSET CONSTABULARY |
Appellant |
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- and - |
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BENJAMIN GRAY |
Respondent |
____________________
The Respondent appeared in person
Hearing date: 25 September 2019
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Crown Copyright ©
Lord Justice Irwin:
"36. For the reasons I have given it is not open to Mr Gray to challenge before me the conclusions arrived at in this case, or in the other cases which I have reviewed. That is so, whether his challenge is grounded on alleged corruption or misconduct by the judges involved, or otherwise. The appropriate route for any such challenge is by way of appeal. That is a route which Mr Gray sought to pursue, so far as Judge Cotter is concerned. The attempt failed utterly.
37. It is clear from the evidence, and from my observations of Mr Gray at the hearing before me, that he remains the obsessive and highly unreasonable litigant which his history suggests, and which other judges have found him to be. There is every reason to believe that if he were not restrained or restricted in some way he would persist in making applications which are TWM. He has issued claims which are TWM before, and I see a real risk that he would do so again."
The Interlocutory Order of Hickinbottom LJ
"2. The GCRO imposed on the Respondent by Order of Warby J on 17 November 2016 shall be extended until the determination of this appeal."
Various Applications
"24. There has been no appeal against the orders of Teare J and Warby J, which stand as matters of record. It is no part of my function to act as any form of an appellate court in relation to those decisions and orders. In the same way, it is no part of my function to second guess the various other orders that have been made over time. They stand as matters of record and provide part of the context in which I must make my independent decision about the position as it appears now." (Judgment, paragraph 24)
As this Court stated in Attorney General v Jones (Marcus David) [1990] 1 WLR 859, the Court considering an application such as this is entitled to rely upon previous findings by other courts. Apart from all other considerations, this material was all available at the time of the hearing below and can in no sense be regarded as fresh. This application was totally without merit.
The Judgment Below
"14. The test for imposing a GCRO is stated by [4.1] of PD 3C to be that "the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate." In R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536 at [60] the Court of Appeal said that this language:
"… is apt to cover a situation in which one of these litigants adopts a scattergun approach to litigation on a number of different grievances without necessarily exhibiting such an obsessive approach to a single topic that an extended civil restraint order can appropriately be made against him/her."
15. The test when the Court is asked to extend a GCRO pursuant to [4.10] of PD 3C is different and is that the Court "considers it appropriate" to do so. That test must be read in the light of the criteria for imposing a GCRO in the first place, since the restriction upon the party's right to bring litigation is the same during the original term of a GCRO or during its extension. In briefest outline, the question either on an original application for a GCRO or on an application for an extension is whether an order (or its extension) is necessary in order (a) to protect litigants from vexatious proceedings against them and/or (b) to protect the finite resources of the Court from vexatious waste. This question is to be answered having full regard to the impact of any proposed order upon the party to be restrained. The main difference between an original application for a GCRO and an application for an extension is that, on an application for an extension, the respondent will have been restrained from bringing vexatious proceedings during the period of the existing GCRO."
"13. …informed that the appropriate fee that would be required by the Court to be paid by a person under a restraint order who wishes to make an application for permission pursuant to PD 3C 4.2 ["the GCRO Application Fee"] is £255. The effect of paragraph 19 of Schedule 2 of the 2008 Order for a person who would otherwise be fee-exempt is that she or he has to raise and pay the GCRO Application Fee of £255 up front, and must bear the cost unless and until their application is granted, at which point it should be refunded. If the application is unsuccessful there is no refund."
"24. …During the hearing, Mr Dixey [counsel then appearing for the Chief Constable] addressed the amount of the GCRO Application Fee on two occasions. On the first occasion, just before the short adjournment, he raised the possibility that the fee might be £55. He suggested that the fee may in fact be £55 rather than £255. The Court suggested that this point should be sorted out after the short adjournment: see page 67 of the transcript. After the adjournment, Counsel submitted that he did not know what advice an individual would obtain as to what the fee would be; and he suggested that there might be at least two different fees, one of £255 and £55. In this state of the submissions, the draft of this judgment was prepared on the basis that the advice the Court had been given was correct."
"64. In these circumstances, I consider that the most important thing is what Mr Gray would be told if he came to the Court to issue an application. I have no reason to doubt Mr Gray's account of his conversation, which is consistent with the information provided during the hearing, and no means of checking or confirming it before handing down judgment on the morning of 22 July 2019.
65. However, I have also undertaken the invidious exercise of trying to work out whether my decision as set out in the paragraphs that precede this addendum would have been the same or different if I had reached and written my judgment on the basis that the GCRO Application Fee that Mr Gray would be charged would be £55. The difference is material because a fee of £55 represents the bulk of a week's benefit whereas a fee of £255 represents the bulk of a month's. Clearly that affects consideration of Mr Gray's submission that the GCRO acted as a total ban, not least because he had said in submissions that he thought the fee would be £1,000 per application.
66. My conclusion is that I would still have come to the conclusion that the effect of the requirement to pay the fee up front had, in Mr Gray's case, the consequence that the GCRO was doing more than acting as a permission filter and was acting as a total ban, for the reasons (duly modified) set out above. If I had thought that Mr Gray would be asked to pay £55 rather than £255 per application for permission, I would have assessed the case as being close to the line but still just favouring the decision not to extend the GCRO."
The Grounds of Appeal
The Respondent's Submissions
What is the Fee Regime?
"2. The fees set out in column 2 of Schedule 1 are payable in the [Senior Courts of England and Wales] and in [the County Court] in respect of the items described in column 1 in accordance with and subject to the directions specified in that column."
"1.8(a) on an application for permission to issue proceedings [£55].
…
1.9(a) for permission to apply for judicial review £154.
…
2.4(a) on an application on notice when no other fee is specified, … £255.
…
2.5(a) on an application by consent or without notice where no other fee is specified … £100."
In the context of this case, it is relevant to note that from 2008 to 2016 the fee for an application for permission to issue proceedings was £50.
"(1) …
"party" means the individual who would, but for this Schedule, be liable to pay a fee under this Order;
…
"restraint order" means –
(a) an order under section 42(1A) of the Senior Courts Act 1981;
(b) an order under section 33 of the Employment Tribunals Act 1996;
(c) a civil restraint order made under rule 3.11 of the Civil Procedure Rules 1998, or a practice direction made under that rule, or
(d) a civil restraint order under rule 4.8 of the Family Procedure Rules 2010, or the practice direction referred to in that rule.
(2) References to remission of a fee are to be read as including references to a part remission of a fee as appropriate and remit and remitted shall be construed accordingly."
"15. Application for remission of a fee
(1) An application for remission of a fee must be made at the time when the fee would otherwise be payable.
(2) Where an application for remission of a fee is made, the party must –
(a) indicate the fee to which the application relates;
(b) declare the amount of their disposable capital; and
(c) provide documentary evidence of their gross monthly income and the number of children relevant for the purposes of paragraph 11 and 12.
(3) Where an application for remission of a fee is made on or before the date on which a fee is payable, the date for payment of the fee is disapplied."
"18 Legal Aid
A party is not entitled to a fee remission if, under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, they are in receipt of the following civil legal services –
(a) Legal representation; or …"
"19. Vexatious litigants
(1) This paragraph applies where –
(a) a restraint order is in force against a party; and
(b) that party makes an application for permission to –
(i) issue proceedings or take a step in proceedings as required by the restraint order;
(ii) apply for amendment or discharge of the order; or
(iii) appeal the order.
(2) The fee prescribed by this Order for the application is payable in full.
(3) If the party is granted permission, they are to be refunded the difference between –
(a) the fee paid; and
(b) the fee that would have been payable if this Schedule had been applied without reference to this paragraph."
Did the judge fall into error in concluding that the fees payable represented an absolute or effective bar to litigating?
"86. The 2007 Act does not state the purposes for which the power conferred by section 42(1) to prescribe fees may be exercised. There is however no dispute that the purposes which underlay the making of the Fees Order are legitimate. Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice. Measures that deter the bringing of frivolous and vexatious cases can also increase the efficiency of the justice system and overall access to justice.
87. The Lord Chancellor cannot, however, lawfully impose whatever fees he chooses in order to achieve those purposes. It follows from the authorities cited that the Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice. That will be so because section 42 of the 2007 Act contains no words authorising the prevention of access to the relevant tribunals. That is indeed accepted by the Lord Chancellor.
88. But a situation in which some persons are effectively prevented from having access to justice is not the only situation in which the Fees Order might be regarded as ultra vires. As appears from such cases as Leech and Daly, even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation. As it was put by Lord Bingham in Daly, the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve."
Other Points
Conclusions
Lord Justice Newey:
Lord Justice Lewison:
Note 1 Following the hearing and while this judgment was in preparation, the Court was informed that the Appellant was served by Bristol County Court with Orders in eight claims, four of which are claims against the Appellant. [Back]