Appeal Against Vexatious Litigant Order
injustice
ATTORNEY GENERAL -V- SIR NICHOLAS WALTER LYELL, FORMERLY PETER HAYWARD.
By Peter Prankerd
On 10th November 1995 the full Court of Appeal (Their Lordships
Henry, Staughton, and Pill) heard an appeal brought by SNW Lyell
(formerly Peter Rubery Hayward initially acting in person), against a
Civil Proceedings Order made 16th February, 1994 in the Divisional
Court by Mr. Justice Scott Baker, and Lord Justice Paul Kennedy. The
motion for a Vexatious Litigant Order was in contention, purportedly
brought by the Attorney General, Sir Nicholas Walter Lyell, QC under
the statutory provisions of Sections 42, Supreme Court Act, 1981, as
amended by Section 24, Prosecution of Offences Act, 1985, which
statute provides for restraint of access to the public courts at
unfettered judicial discretion against citizens indefinitely
sectioned thereby as "vexatious litigants" - for life.
The Appeal was brought by Mr. Hayward, acting in person consequential
to the refusal of grant of Legal Aid, who changed his name by deed
poll to SNW Lyell upon receipt of service of the originating motion
for a Vexatious Litigant Order purportedly instituted by the Attorney
General. The appellant stated the purpose of this act was to
highlight implicit injustices and procedural incarceration imposed
upon litigants, and not to embarrass the Crown Officer concerned, as
construed by Counsel for the Attorney General, notwithstanding the
Defendant stood to be compromised by his namesake in the light of
evidence of incompetence and corruption given to the Scott Inquiry.
Grounds of Appeal alleged errors of fact and law, and violations
against legal, equitable, constitutional, and human Rights.
The criterion adopted in the absence of any Parliamentary provision
for seizing a litigant of a Vexatious Litigant Order was that held by
the "JUSTICE" committee report on Litigants in Person, 1971, where
the litigant must have brought six actions, of which three had been
struck out as vexatious, or showing no cause of action. Such
"actions" included any motions, applications, appeals, or other
interlocutory process, including refusals for Judicial Review, or the
prerogative remedies at law to obtain effective remedy in the
national courts in any single case or proceeding relevant to any one
action, even if instituted as a Defendant.
The appellant contended that the allegations of "vexatious" within
the schedule of actions entered by the Solicitor General were wholly
misconceived, were political, and not compatible with democratic
society, or contemporaneous with the fundamental rights and civil
liberties or Euro-citizens. In the case brought against the Midland
Bank PLC for fraudulent conversion of GBP50,000 of his personal money,
the Divisional Court had found that it was not without just cause,
and could not be vexatious.
Mr. Hayward further contended that the provisions of Section 42 were
being misused as relator discrimination to effect issue estoppel by
those who had valid locus standi to institute litigation, yet were
precluded from so litigating by reason they were associated with a
person subject to the restraints of Section 42, either as, in the
Bank case, spouse, or in the case of Mephistoheles v Lotay (1993),
being business partners. It followed that company directors, or those
having corporate shareholding ownership would be similarly affected,
and that the archaic provisions of the Act were inimical, amongst
others, to fair trade, or the right to free speech, where national
law was unquestionably held to be in conflict with European Law.
The nucleus of vexatious actions scheduled by the Treasury Solicitor
were pertinent to the Appellant's business. He had sought to obtain
redress through the courts for damage and loss sustained to his arms
related export company, and against senior government executives,
being those respective heads of departments against whom he had
alleged, inter alia, misfeasance, and conspiracy to injure. Lawful
consignments of arms routed to Iran for which meticulous
documentation had been quite properly obtained from Government
departments concerned had been unlawfully impounded by HM Customs and
Excise, which sequestration induced breach of contract. Peter Rubery
Hayward was arraigned before the criminal courts upon falsified
evidence, but the facts verified coerced unconditional withdrawal of
the case by the prosecution.
Consequentially, the Appellant actioned Sir Peter Gregson, head of
the Department of Trade and Industry, and Sir Robin Butler, Chief
Secretary to the Cabinet. alleging misfeasance and conspiracy to
injure, being those instrumental in having the shipments impounded at
Dover. Officers of Customs and Excise, and the Inland Revenue were
individually actioned who had allegedly partied themselves to the
said conspiracy. All actions "targeted in personam" those persons
whom the appellant alleged were directly responsible for his damage
and loss.
All writ actions were struck out by summary judgement as being
vexatious, without adduction of evidence. Hayward averred that
evidence as to the facts is essential to such a decision. Notice was
then issued by Sir James Nursaw, head of the Treasury Solicitor's
department that it was the intention of the Attorney General to seize
him of a Vexatious Litigant Order. Mr. Hayward issued a further writ
against Sir James Nursaw "in personam", alleging aiding and abetting
of conspiracy to pervert and impede the course of Justice, with
foresight to obstruct it by misuse of Section 42, abused as a panacea
of absolvement by Crown Officers to protect the Executive.
On Monday, 6th November, the appellant opened his address to Their
Lordships, and stated that his essential grievance was that he
considered the Order of the Divisional Court to be in contempt of
Parliament, and not being used as Parliament intended. Contrary to
precedent law, that "members of the public must be protected against
those who habitually and persistently institute litigation without
just cause or reason." It was averred the misuse of statutory powers
in this case was not to protect members of the public, but to
protect, and obtain remission of liability to Government Executives,
and Crown Officers.
Comparison followed with gagging orders under investigation by the
Scott Inquiry. The appellant averred that abuse of Section 42 was
collateral to the abuse of Public Immunity and Indemnity Certificates
issued by government ministers to permit fraudulent suppression of
evidence (Matrix Churchill and/or Ordtech trials)? and that the
ambiguity drafted within the terminology of Section 42 was
mischievously misinterpreted to permit a usage which clearly
Parliament had at no time intended.
Citing Magna Carta 1215: "To no man will we sell, to no one will we
deny or delay Right or Justice," the appellant averred constitutional
issues arose pertinent to vicarious breaches of the Coronation Oath,
1953, where the Crown, by unjudicial acts, mala fide, was permitting
protection of one class of subject, Crown Officers and Government
Executive, to the discrimination of another - the common man.
Invoking the absolute duty of the national courts to give effective
remedy, judges had no discretion to prostitute Justice or Rights to
those employed by Government or the Crown, or to conceal their own
covert acts of misfeasance in public office. Wrongful process of law
was undemocratic, and it was not in the public interest that judicial
denial of evidence, judicial denial of witnesses, and judicial denial
of Trial by jury was constrained by an unelected judiciary, whose
unaccountability under such anomalous constitutional circumstances
was an undeniable offence against democracy.
On matters of fact the refusal of the Divisional Court to adjourn
pending grant of legal aid to obtain representation by Queen's
Counsel, where the curtailment of civil liberties was "draconian",
the statute being penal in effect, and made for life. It was highly
inequitable that the Crown's most senior Law Officer had instructed
barristers briefed by the Treasury Solicitor to act in the matter at
public expense, when the defendant was deprived of legal aid to be
professionally represented in complex issues of law, justice and
rights which applied. The application for legal aid being under
review for the Appeal, oral application for an adjournment pending
grant of legal aid was arbitrarily refused by their Lordships. The
case continued.
The appellant averred that the Order of the Divisional Court was
voided a nullity by reason of criminal judicial oppression. Civil
proceedings in the inferior court had been attended at judicial
behest by five uniformed Tipstaffs, whose presence the defendant
found to be intimidating, coercive, and oppressive. The judges
refused to state any cogent reason self-evident to qualify cause for
such measures, and the defendant had no option under such bizarre
circumstances but to withdraw. Appellant alleged judicial misconduct,
mala fide, prejudicial to the proper administration of Justice, and
gross abuse of privileged power to prejudice fair trial of the
motion. Formal complaint had been laid before the Lord Chancellor.
Appellant grounds were stated to be that the trial was then continued
in the absence of the defendant pursuant to the provisions of Section
42(1) SCA 1981, viz: "the court may, after hearing that person, or
giving him an opportunity to be heard, make a civil proceedings
Order, a criminal proceedings Order, or an all proceedings Order."
It was alleged that the refusal of the Divisional Court to adjourn
pending grant of legal aid was itself unreasonable (Wednesbury
principle), and for the reasons stated to the inferior court. The
refusal was subject to automatic right of appeal, and the court had
arbitrarily usurped that right. The Divisional Court did not consider
whether such appeal would have been likely to succeed, but contended
that even if they had, it would have been wrong to have done so. The
appellant was thus denied determination of civil rights, rendering
the decision a nullity (see R v Daniel, 1977). Whilst it was conceded
that Section 42 (1) gave statutory right to be heard, it must be
inherent that such right was by Counsel as well as in person.
The Divisional Court should not have heard application prior to the
Court of Appeal deciding whether the inferior court had been correct
not to permit Writ of subpoena ad testificandum directed to HM
Attorney General. Relevancy being to the conduct of proceedings by
challenge as to whether motion was properly brought before the court
by Treasury Solicitors, and whether they had locus standi so to do.
The appellant produced affidavits (Attorney General v Gough, Attorney
General v Prankerd, and Attorney General v Tobianski) and sought
leave to submit evidence in fact that motions therein did not comply
with statutory prerequisite that Section 42 applications must be
brought by the Attorney General. Appellant stated that within
interview, Lyell as constituent and Lyell as his member of
Parliament, the Attorney General had confessed he knew nothing of the
matter. The Taylor sisters precedent raised jurisdictional issues
which ousted trial of Section 42 motions a farce. Their Lordships
adjourned the proceedings pending production of an affidavit to the
court by the Attorney General that he had complied with statute.
Friday, 10th November, 1995, Mr. Jay of Counsel for the Treasury
Solicitor produced affidavits of the Solicitor General on behalf of
HM Attorney General, and documents exhibited thereto which gave
powers of delegation pursuant to Section 1(c), Law Officers Act,
1944, which enabled the Attorney General to authorise the Solicitor
General to act in any particular case.
Having obtained legal aid in the interim, Andrew Gorton of Counsel
represented the appellant, attended by M. Ullah, who disputed the
evidence as insubstantive. Their Lordships advised one hour was
allocated in which to present his client's case, and that the court
would give Judgement at three o'clock. Counsel traversed the evidence
on grounds that the power to apply for a Section 42 Order is of great
importance due to its interference with the citizen's otherwise
constitutional rights of access to the Courts as guaranteed by Magna
Carta. It was therefore incumbent that the Attorney General make such
application, and not delegate where an order is made for life. By
reason 108 Vexatious Litigant Orders had been made since 1888, and 42
of these since 1981, it was not an onerous requirement that the
Attorney General comply with statutory mandate. Counsel stated that
burden of proof must lie with Attorney General to prove case of
"vexatiousness", and should be the criminal standard of beyond
reasonable doubt, and not merely that the court is "satisfied" per
the terminology of the Act. It was absolute that the standard of
burden of proof be correlative to the gravitas of deprivation of
rights inherent to such an Order.
Within the truncated timescale Counsel addressed the individual cases
scheduled, stating that applications for leave to appeal originating
in the Court of Appeal are not entrapped by provisions of Section 42.
Distinction of "civil proceedings" to be distinguished per Supreme
Court Act, and Rules of the Supreme Court to see how "proceedings" is
defined. Cases cited HJ Garratt v Ewing (1991) and Attorney General v
Jones (1990). C.A. had positive duty not to be bound thereby, being
decided "per incuriam". Similarly, distinction between "cause" as any
action, and "matter" as any proceedings in court "not a cause". The
address was unopposed.
DISMISSING THE APPEAL, Henry J found no reason to overturn the
decision of the Divisional Court. On points of fact, the appellant
had not furnished any evidence as to the presence of the Tipstaffs,
and the point could not therefore be decided. On the matter of the
statutory requirement of institution by the Attorney General, the
court was satisfied with the evidence produced by the Treasury
Solicitor, albeit the affidavit was not deposed by the Attorney
General, as ordered. His Lordship stated that the appellant's zest
for litigation had divested all judicial sympathy, and especially
insofar that he had actioned senior government executives instead of
adopting the proper course to proceed against their respective
departments.
Dissenting, Pill L.J. acknowledged the restrictive severity of the
Section 42 Order, and directed that in all future cases where Orders
were sought pursuant to Section 42, the Attorney General was to
personally comply with statutory perquisite. Such applications made
on motion were to be furnished with supporting evidence relied on. On
points of law the court found that argument on burden and standard of
proof had failed, that no judicial omission was admitted with regard
to the indefinite nature of the Civil Proceedings Order. The
Divisional Court had conducted itself properly with regard to refusal
to adjourn. Staughton L.J. whilst acknowledging the case to have
"peculiarly sensitive issues" expressed dismay at the grant of legal
aid, and observed such grant upon the premises of this appeal
constituted gross waste of public funds. Leave to appeal to the House
of Lords refused. No order for costs.
The Appellant stated that in the light of judicial bias conspicuous
on the face of the Judgement, and by reason the decision was
prejudicially adverted by the judges to be predetermined, he
considered the decision was bereft of judicial force. Counsel would
be briefed to petition the House of Lords on the points of law in
dispute. The contention was that the case constituted a criminal
misuse of statutory powers for political ends, and unelected
judiciary protecting narrow cliques of self-interest who orchestrated
vicious attacks upon his person and business by the agencies of
State.
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