Allen v London Borough of Lambeth [2008] EWCA Civ 966

Case No B5/2008/0121[2008] EWCA Civ 966
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Case No 7LB00230
ON APPEAL FROM LAMBETH COUNTY COURT
(HIS HONOUR JUDGE GIBSON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 19 th June 2008
Before
LORD JUSTICE RIMER
Between
CARLOS ALLENAppellantLONDON BOROUGH OF LAMBETHRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON. for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a renewed application for permission to appeal, Sir John Chadwick having refused permission on the papers on 30 April 2008. The applicant is Carlos Allen, who is the claimant in the proceedings. The respondent, the London Borough of Lambeth (“Lambeth”), is the defendant. The appeal that Mr Allen wishes to pursue is against the striking out of his claim on the grounds that it discloses no reasonable cause of action. Deputy District Judge Hayward struck it out on that basis on 31 August 2007 and His Honour Judge Gibson upheld that decision on 8 January 2008. The proceedings were in Lambeth County Court.[2]The proposed appeal is therefore a second appeal, so that to justify the grant of permission the applicant must cross the CPR Part 52.13 threshold, namely that of showing that the appeal would raise an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear it.[3]The nature of Mr Allen’s case is this. He has been a tenant of Lambeth for more than 20 years and has always claimed that he was and is entitled to pay his rent in cash at a particular housing office. Lambeth came to the view that that was inconvenient to it, and it decided that Mr Allen’s claimed right in that respect was not an absolute one and that it could require him to pay his rent in a different way. Mr Allen disagreed with that and, over the years, commencing in 1990 and continuing in 1998, 2001, 2004 and 2005, Lambeth brought five sets of county court proceedings against him for possession. The proceedings all failed.[4]The essence of Mr Allen’s claim against Lambeth is that he says that in each of the five sets of proceedings Lambeth advanced the same bad argument and that there came a point in their prosecution of their claims against him when their proceedings were an abuse of the process of the court and amounted to harassment of him within the meaning of section 1 of the Protection from Harassment Act 1997. Such harassment is a criminal offence but also gives rise to a civil claim at the suit of the victim (section 2). Harassment is not defined in the Act but section 1(2) provides that:
“For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.”
[5]The extent to which the second to fifth claims brought by Lambeth were, as I understand Mr Allen to assert, merely hopeless attempts by Lambeth to engage in renewed efforts to fight again a battle that it had already lost in the first claim is not entirely clear to me. Mr Allen is a litigant in person, and his Particulars of Claim do not spell that matter out in a way that makes an assessment of that question easy. Nor do I have copies of the pleadings in the five sets of proceedings. But it appears that Judge Hayward had those pleadings before him and his summary of the position in paragraphs 6 and 7 of his judgment suggests that each new claim that Lambeth brought was just another attempt to get around difficulties with which it had been met in the prior claim.[6]Judge Hayward struck the claim out because, in his view, Parliament could not have intended the concept of harassment in the 1997 Act to extend to the bringing of failed proceedings. He said:
“To conclude otherwise, would create the situation that anybody losing proceedings could potentially argue that going to court and being put through a very stressing experience could amount to harassment if those claims were unsuccessful. I do not believe that Parliament could possibly have intended that, when they passed the Protection from Harassment Act, and in my view, no reasonable person armed with these facts, however, unfortunate those facts may be, would conclude that that could possibly amount to harassment under the Act.”
[7]Judge Gibson, on the appeal, took the like view, although he said that Judge Hayward had applied the wrong test. The issue before the court arose on a strike out application, and at that stage the relevant question was not whether a reasonable person would think that the conduct amounted to harassment, but whether he could think that. In dealing with Mr Allen’s grounds of appeal, Judge Gibson successively dismissed his points under Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as he also dismissed his point on the Disability Discrimination Act 1995, and I agree with the judge that there is nothing in those points that by themselves, or collectively, justify the survival of this claim to trial. The only question is whether Mr Allen has an arguable cause of action under the 1997 Act.[8]As to that, Judge Gibson appeared to regard as relevant that Allen had other remedies open to him in the face of Lambeth’s repeated claims. He said that he could initially have applied to stop the proceedings on the ground that they could not succeed and, as matters went on, he could have applied to stay the later proceedings as an abuse of the court, since all that Lambeth was seeking to do was to re-run the same tired arguments. He also said that Mr Allen might have made a complaint to the Local Government Ombudsman about Lambeth’s litigious endeavours against him.[9]Having said that, Judge Gibson acknowledged, rightly in my view, that these considerations did not in themselves prevent the court from finding that pursuing the five sets of proceedings could amount to harassment. But he agreed with Judge Hayward that no reasonable person could conclude that Lambeth’s actions could be considered to amount to harassment.[10]I have no doubt that a reasonable person could and would not ordinarily regard the bringing by a claimant, in good faith, of an unsuccessful claim against a defendant as amounting to harassment within the meaning of the 1997 Act. But it is by no means clear to me that the like person could not regard the bringing by the same claimant against the same defendant of five claims, each raising the same bad point, as amounting to harassment. Conduct of that sort is, on the face of it, arguably vexatious. Vexatious litigation does cause harassment to those who are its victim. In Attorney General v Barker [2000] 1 FLR 759, which was concerned with an application for a civil proceedings order under section 42 of the Supreme Court Act 1981, Lord Bingham of Cornhill CJ said, at 764:
"… ‘Vexatious' is a familiar term in legal parlance. The hallmark of a vexatious proceedings 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."
In that passage, Lord Bingham therefore referred to vexatious proceedings as involving “harassment”, and it is not obvious to me that he was using that word other than in the sense of its undefined meaning in the 1997 Act.[11]Both judges in the county court favoured the view that the visiting of repeat and misconceived proceedings upon a defendant, such as those that Mr Allen has had to suffer, cannot amount to harassment within the meaning of the 1997 Act. Sir John Chadwick, in refusing permission, said that:
“It may be said, but I do not decide the point, that other judges would have taken a different view….”
However, he refused permission to appeal because it could not be said that Judge Gibson’s determination raised any point of principle or practice; and nor could it be said that the judge was so plainly wrong that there was a compelling reason for the Court of Appeal to intervene.[12]Whilst I have had reservations, I have come to the conclusion that this appeal does raise an issue which can fairly be said to cross the Part 52.13 threshold. It raises in fairly stark form whether the visiting upon Mr Allen of the repeated claims of the sort that he has had to suffer is capable of constituting harassment within the meaning of the 1997 Act. Judge Hayward appears to have been of the view that the bringing of failed legal proceedings could never constitute harassment. Judge Gibson appears to have been of the view that even the bringing of the repeat claims, whose bringing arguably amounted to an abuse of the process of the court, could not so amount. If Mr Allen is ever allowed to pursue his claim to trial, its outcome will no doubt be very fact-sensitive. But it appears to me that the novelty of his claim is such as to provide a compelling reason why this court should consider on appeal whether he should be allowed to pursue it to trial. I give Mr Allen permission to appeal against Judge Gibson’s order.

Order

Application granted.