NI: “Vexatious litigant” loses appeal against legal ban

A man has lost his appeal against an order pursuant to section 32(1) of the Judicature (Northern Ireland) Act 1978, which requires him to obtain the consent of the High Court before instituting or continuing any legal proceedings in any court or tribunal.

The order was made at the request of the Attorney General for Northern Ireland, following the institution by Mr William John Morrow of four separate High Court actions between the years 2007 and 2012.

These actions had been brought against the Strathclyde Police, the Law Society of Scotland, the Northern Ireland Housing Executive and the Police Service of Northern Ireland.

When making the original order, the judge, Stephens J, outlined the legal framework, citing A.G. v Paul Barker 2 FCR 1 which deals with the similar terms of the English Supreme Court Act 1981 section 42.

It was found in that judgment that in order to satisfy the pre-conditions for an order, it must be shown that “the person against whom the order is sought has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings or made vexatious applications whether in the High Court or any inferior court and whether against the same person or against different persons”.

At that point, the judge would then have a discretion to make an order, depending on the balance of justice between the citizen’s prima facie right to pursue legal actions in the civil courts, and the public’s right to be protected from abusive and ill-founded claims.

It was noted that: “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.”

The judge cited the cases of Bhamjee v Forsdick and Others 1 WLR 88; H v United Kingdom (1985) 45 DR 281 and Ebert v Venvil Ch 484, which demonstrated that the right to access the courts may be subjected to limitations, as long as the limitations did not reduce access to such an extent that the very essence of the right was impaired, were in pursuit of a legitimate aim, and were not disproportionate.

The judge noted the need to “ensure that scarce and valuable judicial resources are not extravagantly wasted on barren and misconceived litigation to the detriment of other litigants with real cases to try”.

Finally, he noted that: “the costs incurred and the time taken up by individuals or organisations in defending vexatious litigation is not to be underestimated. The deleterious effect and the adverse effects on public bodies and on individuals is not to be underestimated. Vexatious litigation can and indeed does have very serious consequences for private individuals.”

He then turned to the specific facts of the case. He noted that in each case brought by Mr Morrow the action failed because Mr Morrow had failed to disclose a cause of action, and in the cases against Strathclyde Police and the Law Society of Scotland, because of a lack of jurisdiction.

It was noted that Mr Morrow had appealed all decisions made against him, until it was no longer possible to do so.

Applying the test provided in section 32(1) of the Judicature (Northern Ireland) Act 1978, he found that the applicant had been habitually and persistently engaged in litigation, that there had been no reasonable grounds for doing so and that the proceedings had been vexatious.

Using his discretion, he therefore made the order, which the Court of Appeal noted was “predictably” appealed.

The Court of Appeal observed that Mr Morrow had provided “no indication as to why the appellant considers that the order of Stephens J was wrong or the basis upon which it should be reversed or varied. Much of the document refers to the background to and history of his four actions.”

Submissions made by Mr Colmer on behalf of the Attorney General cited Murray v Royal County Down Golf Club NICA 52 as recently reiterated in Young v Hamilton and Others NICA 14 as demonstrating that it is for the appellant to demonstrate why a judge was wrong in his decision as to the facts.

Further, Mr Colmer cited Lofthouse v Leicester Corporation (1948) 64 TLR 604 as stating that an appeal court ought not to interfere where the question is a pure question of fact, unless it can be shown clearly that the trial judge did not take all the circumstances in evidence into account, or misapprehended certain of the evidence or drew an inference which there is no evidence to support.

In relation to Stephen J’s exercising of discretion, Mr Colmer submitted that an appellate court will not normally interfere with the exercise of discretion by a judge although it may do so either on grounds of law or if it sees that the decision will on other grounds result in a reasonable danger of injustice. (per Evans v Bartlam AC 473 and Charles Osenton and Co v Johnston AC 130 cited with approval by Carswell LJ in Millar (A Minor) v Peeples and Others NI 6).

It was submitted that Stephen J had correctly used his discretion and arrived at a conclusion justified on the law and particular facts.

On appeal, the Court reiterated the relevant law, before finding that: “The appellant had sequentially commenced four separate sets of proceedings, none of which has been shown by him to have any basis so far as the courts of Northern Ireland are concerned. This court endorses the findings of fact made by the judge, the appellant having failed to articulate, much less establish, any comprehensible legal or factual basis for challenging any of those findings.”

In relation to the Stephen J’s exercising of discretion, the Court found that it had been correctly used.

They concluded that: “The appellant has doggedly pursued each one of this series of hopeless cases with tiresome persistence to every judicial tier, advancing the same baseless contentions repetitively until each case had been advanced as far as he could possibly make it go.

“He seems impervious to the considered explanations of Masters, High Court Judges and of this court as to why his claims are manifestly ill-founded and that same inflexible approach was again plainly in evidence at the hearing before us.

“His apparent lack of any insight might be thought unfortunate were it not for the harm which it has done and would, we are satisfied, if uncontrolled be likely to continue to do, both to those who are made Defendants to his misguided and promiscuous litigation and to the orderly administration of justice.”

  • by Rachel Killean for Irish Legal News
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