Ewing & Ors, R (on the application of) v Department of Constitutional Affairs [2006] EWHC 504 (Admin)

Case No CO/28/2005[2006] EWHC 504 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 22 nd February 2006
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF TERENCE PATRICK EWINGClaimantPETER HENRY PRANKERDClaimantPATRICIA YVONNE PRANKERDClaimant-v-DEPARTMENT OF CONSTITUTIONAL AFFAIRS(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
THE 1ST, 2ND AND THIRD CLAIMANTS APPEARED IN PERSON for in personMR TIM EICKE (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N TIntroduction
[1]MR JUSTICE SULLIVAN: In this application for judicial review, the first and second claimants challenge the amendment to paragraph 7.6 of Practice Direction 3 ("the Practice Guidance"), which supplements Rule 3.4 of Part 3 of the Civil Procedure Rules ("the Rules") which took effect on 1st October 2004. The third claimant renews her application for permission to apply for judicial review of the amendment to the Practice Direction.

Factual and Legal Background

[2]The first claimant was made the subject of a civil proceedings order ("an order") under Section 42(1) of the Supreme Court Act 1981 ("the 1981 Act") by the Divisional Court on 21st December 1989. The second claimant was also made the subject of an order by the Divisional Court on 18th November 1993. The third claimant, who is the wife of the second claimant, is not the subject of an order.[3]Section 42 of the 1981 Act is concerned with the restriction of vexatious legal proceedings. For present purposes, the relevant provisions are as follows:
"(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..."[4]Both the 1981 Act and the Rules are silent as to the procedure for the making of an application for, and the granting of leave under subsection 42(3). The procedure is governed solely by paragraph 7 of the Practice Direction. Paragraph 7 is headed "Vexatious Litigants" and applies where a civil proceedings order is in force against a litigant. Paragraphs 7.2 to 7.5 set out the information which the applicant for leave must supply to the court. Before the amendment in question, paragraph 7.6 provided that:
"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.[5]On 23rd March 2004, Collins J, the judge in charge of the Administrative Court, wrote to Dyson LJ asking for the following matter to be considered by the Civil Procedure Rule Committee:
"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..."[6]At a meeting on 21st May 2004, the Committee agreed with the suggestion of Collins J and approved a draft of an amendment. In July 2004, the Lord Chief Justice as President of the Queen's Bench Division, the Master of the Rolls as President of the Civil Division of the Court of Appeal, the Vice Chancellor as Vice President of the Chancery Division and Dyson LJ on behalf of the Lord Chancellor pursuant to Section 5 of the Civil Procedure Act 1997 ("the 1997 Act") approved a number of amendments to Practice Directions. These included the amendment to paragraph 7.6, which substituted for the old-subparagraphs (3) and (4) new subparagraphs in these terms:
"'(3) make an order dismissing the application without a hearing; or (4) give directions for the hearing of the application.'."
[7]Thus, an applicant for leave under Section 42(3) is no longer entitled to an oral hearing whether or not his application is repetitious. The High Court judge considering the application has a discretion as to whether a hearing should be directed. It is this change which the first and second claimants contend is unlawful. They say that the amendment is:(1) ultra vires sections 1(1)(b) and 5(1) of, and paragraphs 1, 5 and 6 of Schedule 1 to, the 1997 Act, and sections 42 and 84 of the 1981 Act and is also outwith the court's inherent jurisdiction (insofar as it has any) to make Practice Directions governing its own procedure;(2) contrary to the principles of natural justice or fairness and in particular the right to be heard under common law;(3) incompatible with Article 6(1) of the European Convention on Human Rights ("the Convention") as set out in Schedule 1 to the Human Rights Act 1998;(4) discriminatory under Article 14 of the Convention.[8]The first claimant has made an application for leave to institute civil proceedings under Section 42(3), which has been dismissed without a hearing, and the second claimant has an application for leave outstanding. I am not concerned with the merits of those applications. On 5th January 2005 the first and second claimants applied for leave under Section 42(3) to apply for permission to apply for judicial review and all three claimants applied for permission to apply for judicial review of the amendment to paragraph 7.6 of the Practice Directions. On 4th April 2005, I granted both of the applications made by the first and second claimants. I observed, when granting them leave under Section 42(3):
"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."
[9]The third claimant's renewal of her application for permission to apply for judicial review was heard immediately after the first and second claimants had made their submissions in support of their application for judicial review (the second claimant adopted the very detailed oral submissions made by the first claimant). The third claimant accepted that, in normal circumstances, the mere fact that she was married to a litigant who was subject to an order would not give her a sufficient interest to challenge the lawfulness of the amendment in the Practice Direction. However, she submitted that she had been disadvantaged in certain proceedings in the West Country in which she and the second defendant were joint parties because of her perceived association with the second claimant. In summary, she felt that the trial judge in those proceedings had not treated her fairly because she was acting jointly with a vexatious litigant.[10]It is not for me to express any view as to whether those complaints are justified. Even if justified, they would not give the third claimant a sufficient interest to challenge the amendment to the Practice Direction. If she has been unfairly disadvantaged, then she has a remedy through the normal appellate process which she may pursue without having to obtain leave under Section 42(3), since she is not subject to an order. She will, of course, have to obtain permission to appeal from the appropriate court, as would any other disappointed litigant.[11]Moreover, the third claimant confirmed that her submissions on the substantive issue -- whether the amendment to the Practice Direction was lawful -- would have been precisely the same as those that had been advanced by the first and the second claimants. Since the first and second claimants have been allowed to present their submissions at the hearing, her application for permission to be allowed to do so is, in any event, otiose. For these reasons, I refused the third claimant's renewed application for permission to apply for judicial review. The remainder of this judgment deals with the four grounds of challenge in the first and second claimants' application for judicial review and any further reference to "the claimants" is a reference to the first and second claimants. (1). Ultra Vires[12]Section 1 of the 1997 Act introduced the rules:
"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."
[13]These provisions of the 1997 Act do not remove, or restrict, the inherent jurisdiction of the High Court exercised through the Heads of Division to issue Practice Directions governing the practice to be followed in the High Court. Section 5 expressly authorises Practice Directions to make provision for the removal of proceedings. It does not, either expressly or by necessary implication, restrict the court's power to issue Practice Directions to that issue alone. Paragraph 6 of Schedule 1, in stating that the Rules may, instead of providing for any matter, cross refer to provisions contained in Practice Directions, implicitly accepts that the court does have an inherent jurisdiction to make such directions. It does not confer a power to make Practice Directions. They continue to be made under the court's inherent jurisdiction.[14]Paragraph 9A-840 of the White Book correctly summarises the position:
"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."
[15]The status of practice directions was considered by May LJ in Godwin v Swindon Borough Council [2001] EWCA Civ 1478; [2002] 1 WLR 997. In paragraph 11 he said:
"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."
[16]In Re C (Legal Aid: Preparation of a Bill of Costs) [2001] 1 FLR 602 it was argued on behalf of the appellant that the Practice Direction about costs supplementing Parts 43-48 of the Rules had the same force in law as the Family Proceedings (Remuneration) Regulations 1991 and impliedly amended or repealed them insofar as they were inconsistent. Hale LJ, as she then was, said in paragraph 21:
"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'."
[17]In Leigh v Michelin Tyre PLC [2003] EWCA Civ 1766, Dyson LJ, having referred to the passages in Re C and Godwin, cited above, said in paragraph 21 of the judgment of the court:
"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."
[18]Since Section 42 of the 1981 Act and the Rules are silent as to the procedure to be adopted by the court when dealing with applications under subsection 42(3), one might have thought that the Practice Direction is an obvious example of the court regulating its own procedure within the Rules and filling in a gap left by the Rules.[19]The claimants contend that the Practice Direction does not merely fill in a gap left by the Rules but purports to legislate because it removes the constitutional right of access to the courts; alternatively, because it removes the common law right to be heard in breach of the rules of natural justice or fairness. On behalf of the defendant, Mr Eicke readily accepted that a practice direction could not lawfully remove the citizen's right of access to the courts and could not lawfully impose any requirement or restriction which would be in breach of the rules of natural justice or unfair. The defendant contended that the Practice Direction did not remove the right to those subject to an order to an access to courts but merely regulated the manner in which they were allowed to exercise that right, and that fairness did not require that there should be an oral hearing in every case. I will deal with the latter proposition under issue (2) below.[20]The claimants placed particular reliance upon the decision of the Divisional Court in R v Lord Chancellor ex parte Witham [1998] AC 575. In that case the claimants sought a declaration that Article 3 of the Supreme Court Fees (Amendment) Order 1996 (which removed from litigants in person who were on income support their exemption from having to pay court fees) was ultra vires the rule making power conferred on the Lord Chancellor by Section 30 of the 1981 Act. Having reviewed the authorities, Laws J, as he then was, said at page 585F to 586A:
"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."
[21]The short answer to the claimants' submissions based on Witham is that the Practice Direction does not "bar absolutely" persons subject to an order from seeking justice in the courts. They are not "totally precluded" or "turned away". On the contrary, they are entitled to commence or continue civil proceedings if they can satisfy a High Court judge that the proceedings are not an abuse of process and that there are reasonable grounds for the proceedings. The Practice Direction enables them to explain, with supporting evidence, in writing, why they wish to pursue the proceedings. The judge considering their application has power to give directions for an oral hearing if he considers it appropriate to do so.[22]In his skeleton argument on behalf of the defendant, Mr Eicke submitted that as a result of the amendment to the Practice Direction "the presumption now is that applications for leave under Section 42(3) will be decided without a hearing unless the High Court judge considering the application directs that there should be an oral hearing". The claimants submitted that there was a presumption that applications should be dealt with on paper because subparagraph (3), which enables application to be dismissed without a hearing, preceded subparagraph (4), which enables the judge to direct a hearing.[23]In my judgment the Practice Direction does not contain any presumption either way: whether in favour of, or against, directing an oral hearing. In his oral submissions, Mr Eicke accepted that this was the correct understanding of the Practice Direction. There is certainly, as a result of the amendment, a presumption that it will not be necessary to direct a hearing in every non-repetitious application. But that is as far as the presumption goes. When considering an individual case, the Practice Direction, as amended, gives the judge determining the application an unfettered discretion as to whether it should be dealt with on the papers or after a hearing.[24]The claimants complained that the discretion was unfettered. There were no guidelines as to how the discretion was to be exercised or as to what factors should or should not be taken into consideration by the judge determining the application. There is no substance in this complaint. Just as it is unnecessary to teach one's grandmother how to suck eggs, so it is unnecessary for the Heads of Division to remind High Court judges that, in exercising their discretion under the Practice Direction, they should be guided by the overriding objective in paragraph 1.1 of Part 1 of the Rules and direct a hearing, if one is required, in order to deal justly with the application; or, to use the language of natural justice, if they consider that fairness requires a hearing.[25]The claimants contented that the Witham principle applied to any limitation on the right of access to the courts and not merely to an absolute bar. However, in Section 42 Parliament expressly gave the court power to place limitations on the right of persons subject to an order to access to the court. The Practice Direction, and in particular the amendment the subject of these proceedings, merely deal with the machinery whereby that limitation is put into effect. That is entirely consistent with the court's use of its inherent powers over many years to limit the right of access of certain litigants in order to prevent abuse of its own process; see the history of the measures adopted by the court over the years to restrain vexatious litigation set out in the Court of Appeal's judgment in Bhamjee v Forsdick (Practice Note) [2004] 1 WLR 88; [2003] EWCA Civ 113, paragraphs 7-15.[26]For these reasons, I am satisfied that the amendment to the Practice Direction was within the court's inherent power to regulate its own procedure and merely filled a gap left by the rules. (2). Natural Justice or Fairness[27]The claimants submitted that the amendment to the Practice Direction, by denying them the "right to be heard" was a breach of the rules of natural justice. That submission begs the question: whether at common law there is a right to an oral hearing in every case. The answer to that question is "no". At common law, one is entitled to an oral hearing where fairness requires that there should be such a hearing, but fairness does not require that there should be an oral hearing in every case. In R (Hammond) v Secretary of State for the Home Department [2005] 3 WLR 1229; [2005] UKHL 69, the claimant applied in judicial review proceedings for a declaration that paragraph 11(1) of Schedule 22 to the Criminal Justice Act 2003, which provided that an application by a mandatory life sentence prisoner whose minimum term had been set by the Home Secretary for reconsideration of the term by a High Court judge was to be determined by the judge "without an oral hearing", was to be read subject to an implied proviso that, where it was necessary to comply with the prisoner's rights under Article 6(1) of the Convention, an oral hearing would be held. In paragraphs 16 and 17 of his speech, Lord Bingham said:
"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."
[28]Although Hammond was concerned with the requirements of Article 6 of the Convention, for present purposes at least, the position of common law is no different. In R v Army Board of the Defence Council ex parte Anderson [1992] 1 QB 169, Taylor LJ, as he then was, said this under the heading "Procedural requirements":
"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][29]At page 187E, Taylor LJ set out a list of principles. Having set out as the first principle that "there should be a proper hearing of the complaint", he described the second principle in these terms:
"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."
[30]In R (West) V Parole Board [2005] 1 WLR 350, 2005 UKHL 1, the House of Lords had to consider the extent to which the board was required to offer a prisoner, who had been recalled to prison after revocation of his licence, an oral hearing before deciding whether or not to recommend his re-release under Section 39 of the Criminal Justice Act 1991. When considering the position at common law, Lord Bingham said in paragraph 27:
"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."
[31]The claimants submitted that the decisions in Anderson and West should be distinguished because they were concerned with decisions made by tribunals rather than the courts. While written representations might be acceptable in tribunals, fairness required an oral hearing in a court. That submission repeats the "inflexible approach" that was rejected by Taylor LJ in Anderson (see above) and ignores both the decision of Hammond, which was concerned with a determination made by a High Court

judge and the "authoritative guidance" given by Lord Bridge in Lloyd v McMahon, that:

"... 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."
[32]I would accept, as a very broad generalisation, that fairness is more likely to require an oral hearing in proceedings before the High Court, as opposed to an administrative tribunal, bearing in mind the kinds of issues that are determined by the court, as opposed to administrative tribunals. It is also correct that, as the claimants submit, the Rules generally proceed upon the premise that, before the court determines any issue in civil proceedings, there will be an opportunity for an oral hearing, which will usually be in public (see rule 39.2 and the supplementary practice direction thereto), and express provision is therefore made in the rules for the determination of issues without a hearing, see, for example, CPR 23.8, which enables the court to deal with applications without a hearing in certain circumstances, and CPR 54.18, which enables the court to dispense with a hearing in judicial review proceedings where all the parties agree.[33]However, that is of no avail to the claimants because Section 42 prevents them from commencing or continuing civil proceedings (wherein an oral hearing would be the normal procedure under the Rules) without the leave of the judge under subsection 42(3). As Mr Eicke pointed out, the cases relied upon by the claimants for the proposition that fairness required that there should be an oral hearing were all cases where (with one exception) the party concerned was seeking to defend himself against some form of penalty or adverse decision, such as indefinite suspension from university examinations, dismissal from office, loss of a tax advantage or being required to give a recognisance beyond his means. A person subject to an order is not prevented from defending himself if civil or other proceedings are brought against him. He is required to obtain leave under Section 42(3) when he wishes to bring proceedings. Since the purpose of Section 42 is to interpose a filter mechanism between the person subject to an order and those persons who might otherwise be the subject of proceedings brought by him so that those persons are not troubled by vexatious litigation, it follows that they will not normally be involved in the leave application.[34]Thus the court, in deciding whether or not to give leave, will not be resolving contested issues of fact and there will be no need (as was the case in a number of the authorities cited by the claimants) for the applicant for the order to be given a fair opportunity of dealing with allegations made against him. He will be the one making the allegations. In many, if not most, cases under Section 42(3) the court will be considering whether, on the version of the facts as presented by the claimant, the claim is abusive (for example, because it is in reality an attempt to relitigate matters which have been determined against the applicant in earlier proceedings) and whether there are reasonable grounds for the application. If there is any uncertainty as to the factual basis of the application, the judge can give directions for further written evidence to be supplied or direct that there shall be a hearing.[35]For the avoidance of doubt, I do not suggest that a judge determining an application under Section 42(3) is bound to proceed on the version of facts presented by the applicant. There may well be cases where, for example, the applicant's version of events is entirely lacking in credibility on its face or is merely a repetition of evidence that has been rejected in earlier proceedings. Usually, there will be no need to resolve any, let alone any substantial, issues of fact in order to determine an application under Section 42(3). If there is such a need in any particular case, then the Practice Direction is sufficiently flexible to enable the judge to direct an oral hearing. In summary, the Practice Direction contains the flexibility which the House of Lords in Hammond concluded should be read into paragraph 11(1) of Schedule 22 to the Criminal Justice Act 2003 in order to make it compliant with Article 6 of the Convention. That flexibility also ensures that the Practice Direction is not in breach of the requirements of natural justice or fairness.[36]Before turning to Article 6, I should mention the only case relied upon by the claimants under this ground of challenge, which involved a claimant rather than a defendant to proceedings: Polanski v Conde Nast Publications Limited [2005] 1 WLR 637. However, that case was not concerned with whether fairness required an oral hearing. An oral hearing was required and the question was whether the appellant could participate in the proceedings via a video link or whether he should be denied use of that facility because he was unwilling to come to England because he was a fugitive from justice. The House of Lords decision in Polanski does not advance the claimant's case. For the sake of completeness, I should mention that the claimants referred to a CPR Rule 3.32 in their written submissions in reply but that rule has no relevance to applications for leave under Section 42(3) because the court, when determining such applications, is not making an order on its own initiative, it is exercising its powers on an application in which the applicant will have been able to set out such representations as he wishes to make. (3). Article 6 of the Convention[37]The first question is whether applications for leave under Section 42 are subject to the procedural guarantees in Article 6.1. In Application 11559/85 H v United Kingdom [1986] 45 D&R 281, the European Commission on Human Rights considered the complaint by an applicant that a refusal by a judge of the Court of Session under the Vexatious Actions (Scotland) Act 1898 of his application to bring civil proceedings against a police officer who, he alleged, had assaulted him, was in breach of Article 6.1 and, furthermore, that there had been a denial of access to the court. Although the report refers to a hearing by the Single Judge of the Court of Session, the hearing was in camera and in the absence of the applicant. The Commission said this, when declaring that the application was inadmissible:
"(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."[38]The Commission has adopted the same approach, citing its decision in H v United Kingdom, in the subsequent cases of O'Cathail v Ireland Application 27348/95, and Graeme v UnitedKingdom Application 41519/98. Although the claimants pointed out in their written representations in reply that this court is not bound to follow these decisions, I can think of no good reason why they should not be followed.[39]For the reasons set out above, under ground (1) ultra vires, the amendment to the Practice Direction does not restrict the access to court of a person subject to an order "to such an extent that the very essence of the right is impaired". On the contrary, he is able to place his written application for leave to commence proceedings before a judge at High Court level who has an unfettered discretion to direct a hearing. Plainly, the Practice Direction and the amendment pursue a legitimate aim, preventing vexatious litigation in the interests of the proper administration of justice, and the amendment is proportionate since it does not prevent the judge from directing a hearing where he is of the opinion that fairness requires one.[40]Even where Article 6.1 is engaged, the right to an oral hearing is not absolute. The earlier decisions are conveniently listed in the European Court of Human Rights' judgment in Miller v Sweden Application 55853/00. In the final judgment, dated 8th May 2005, the Court said, in paragraph 29:
"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."[41]Section 42(3) is dealing with an exceptional kind of application: an application by a litigant who has in the past instituted vexatious proceedings, to be permitted to engage in further proceedings. In deciding whether every non-repetitious application for permission should be determined after an oral hearing or only those applications where a High Court judge considers that a hearing is necessary, those responsible for making the amendment to the Practice Direction were entitled to have regard to the need for efficiency and economy in the use of judicial and court time in the interest of all litigants.[42]The claimants submitted that whether there were exceptional circumstances which justified dispensing with an oral hearing should be decided on a case by case basis: some vexations litigants were more vexatious than others. Some cases are more hopeless than others. However, the European Court of Human Rights made it clear in B v UK; P v UK [2002] 34 EHRR 19 (a case concerned with whether residence applications in proceedings under the Children Act 1989 should be heard in public) that it was not inconsistent with Article 6.1 for a class of cases to be designated as an exception. In paragraphs 39 and 40 the Court said:
"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."[43]As noted above, the amended Practice Direction confers such a discretion and there is nothing to prevent an applicant for leave requesting an oral hearing. If such a request is made, it will be considered by the judge, who will decide whether a hearing is necessary in order to determine the application. For these reasons the amendment is not incompatible with Article 6.1. (4). Article 14[44]I can deal quite shortly with this ground of challenge, which was not mentioned in the Claim Form but was referred to by the claimants in their submissions. In paragraph 31 of the Darby Case, case number 17/89/177/223, the European Court of Human Rights explained in paragraph 31 that:
"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'"
[45]The right of access to the court of those subject to an order is restricted by Section 42 (but not so as to impair the essence of the right, see above). However, the restriction does not discriminate between individuals in "similar situations". All persons subject to an order under Section 42 are treated equally: all of them must apply for leave under Section 42(3) if they wish to institute proceedings. Persons subject to an order are not in a "similar situation" to ordinary litigants because the court will have concluded that they have engaged in vexations litigation to such an extent that they should be subject to a filter process to prevent them from engaging in further vexatious litigation. In any event, for the reasons given above under ground (3), the Practice Direction and the amendment pursue a legitimate aim: preventing vexatious litigation and ensuring that there is an efficient and economic use of judicial and court time in the interests of proper administration of justice and they do so in a proportionate manner, given the existence of the judge's discretion to direct a hearing.

Conclusion

[46]For the reasons set out above, I reject all four grounds of challenge and dismiss the application for judicial review.[47]MR EICKE: My Lord, I am grateful for the speedy and comprehensive judgment your Lordship has just delivered and the only application I have is that(a) the application be dismissed and(b) an order for the Department's costs on the usual basis that costs should follow the event.

MR JUSTICE SULLIVAN: What do you want to say about that, Mr Ewing?

[49]MR EWING: My Lord, obviously the application is dismissed. The application for costs: of course, I cannot speak for Mr Prankerd, but no costs schedule was ever served. So I would submit that there should be no order for costs, as we never received any costs schedule or indication that an application for costs was going to be made.[50]MR JUSTICE SULLIVAN: I think if the case goes longer than a day, normally, anyway, you would go to detailed assessment. You only receive a schedule if you were going to ask for summary assessment.[51]MR EWING: I would think that this is -- then your Lordship has a discretion as to whether costs should be ordered in this case. I would submit that this is a public interest case and a case which was brought, as your Lordship stated when granting leave, in the interests of all vexatious litigants and it was in the public interest that a definitive ruling should be given and that has been done, so far as this court is concerned. It was in the interests of both the claimant and all the other vexatious litigants who were not before the court that that was done and I would have thought it was in the interests of the Department. So, in those circumstances, I would submit that this is a case where it is not appropriate to have a costs order.

MR JUSTICE SULLIVAN: Yes, thank you.

[53]MR EWING: There is the one technical matter. I am not obviously seeking for you to change your judgment but you said, in relation to myself, that I had been refused on the papers. That is right, that is Newman J's order. As far as Mr Prankerd is concerned, my Lord, I understand that no final decision had been given. It is still pending, so your Lordship might seek to amend that in the perfected -- I think it was Field J who directed that both Mr and Mrs Prankerd's applications ought to be considered on paper and, of course, this has been pointed out by Mrs Prankerd to the Civil Appeals Office; her application under the Appeals Destination Order has to go to the Court of Appeal for an oral hearing but Mr Prankerd's -- where his goes is anyone's bet.

MR JUSTICE SULLIVAN: Thank you.

[55]I am satisfied that an order for costs would be appropriate. I accept that the case has a wider interest but it was a matter for these particular claimants to decide whether they commence proceedings and they, is it were, took up the cudgels on behalf of other vexatious litigants and were entirely free to do so or not as they chose and they chose do so. So it seems to me that they should accept the consequences of having failed in this application.[56]So the application is dismissed, the defendant's costs are to be paid by the first and second claimants. There is no order for costs in respect of the third claimant because she did not obtain permission to apply for judicial review. I would not formally give costs at an oral renewed hearing in any event. Those costs are to go for detailed assessment, unless otherwise agreed.[57]Are there any other applications?[58]MR EWING: My Lord, yes. If I can take it in two stages. Obviously, it relates to the application for leave to appeal but it is divided into two stages. I have not got the case of Johnson v Valks before me but I am sure your Lordship is familiar with it. What the Court of Appeal said in that case was that once Moses LJ had granted Mr Johnson permission to start his proceedings and it was -- I cannot remember the Lord Justice of Appeal now -- but once leave to appeal had been granted, up until the Court of Appeal stage, applicants were entitled to make applications without seeking further leave. So, as I understand it, the application for leave to appeal process, certainly in respect of myself and Mr Prankard, is that an application for leave to appeal should first, in the first instance, be made to your Lordship. We would submit that section 42 leave would not, under the Johnson v Valks principle, be needed for that application. My Lord, if your Lordship were minded to grant leave to appeal, then of course, the Section 42(3) leave principle would come into force to institute the appeal to the Court of Appeal. If your Lordship -- and, of course, my understanding is, although you have a new Practice Direction, where a party is orally before the court, the requirement is that the application for relief under Section 42 had to be dispensed with.

MR JUSTICE SULLIVAN: Well, I do not think we will worry about that.

[60]MR EWING: So that is the first limb. We would submit that the matter has raised constitutional issues of some public importance and we would seek to persuade your Lordship that your Lordship at this stage should grant permission to appeal to the Court of Appeal and, as I understand it, if your Lordship refuses that leave, your Lordship is required to state reasons, as I understand. If your Lordship is against us on that application, then, of course, in respect of ordinary litigants, we would be at liberty to file our appellant's notice and to seek permission to appeal from the Court of Appeal. But, of course, before we do that, either of us, both Mr Prankerd and myself, would need leave under Section 42(3) to present an appellant's notice. That is the second limb, if you refuse us leave to appeal in this court as a matter of principle. Your Lordship did indicate, I think, at an earlier occasion that your Lordship would be the minded to grant us leave to go to the Court of Appeal and to a Lord Justice of Appeal, or Lord Justices, whoever may consider the application, whether they consider that the Court of appeal should grant permission. So, either way, we seek the various permissions that are required. We would invite your Lordship to, first of all, consider granting leave in this court first and then it is only if your Lordship then refuses that application that we go on to the 42 leave to pursue our appellant's notices to the appeal court. If your Lordship requires any further argument --[61]MR JUSTICE SULLIVAN: I think I understand your application. Thank you very much.[62]MR EWING: Also, if your Lordship were minded to either grant leave to appeal or grant Section 42(3) leave to go to the Court of Appeal, in respect of these detailed assessments and costs and so forth, we would invite your Lordship to stay any costs procedures pending the outcome of either an appeal, if your Lordship were minded to grant it, or until the application for permission to appeal were known. I think that is the ordinary application again. We apply for a stay. I cannot remember which part of Part 62 it is now but I know there is a jurisdiction to grant these stays either in the court below or in the appeal court.[63]MR JUSTICE SULLIVAN: Yes thank you. Mr Eicke, I do not think I need to trouble you as far as the application for permission to appeal is concerned. I am not minded to grant permission to appeal, as I have indicated, but I am minded to give the first and second claimant permission under Section 42(3) to apply for permission to appeal to the Court of Appeal. Is there anything you want to say about the application for a stay on costs?[64]MR EICKE: My Lord, no. The basis on which the Department sought costs was on the basis that costs follow the event. We are content the application for a stay -- be stayed pending the resolution of the application for permission to appeal to the Court of Appeal; to follow that event, if that application is dismissed, then an order for the affidavit, if not. The Department is content to wait until those proceedings have come to an end.[65]MR JUSTICE SULLIVAN: Right. Thank you both very much indeed.[66]I am not persuaded that it would be right to grant permission to appeal to the Court of Appeal. Firstly, I am not persuaded that there is a real prospect of success. It seems to me that there was an important matter that deserved to be argued out. Having heard it argued out, in the light of the matters raised in the judgment, I do not think there is it real prospect of success. Nor am I persuaded that there is any other compelling reason. There was a need for a definitive ruling one way or the other and, without wishing to sound immodest, it seems to me that a sufficiently definitive ruling has now been given.[67]I shall, however, give permission, as I indicated I would, under Section 42(3), which will enable the first and second claimants to apply for permission to the Court of Appeal to see if they can persuade the Court of Appeal that there is either a real prospect of success or some other compelling reason such as would need a definitive ruling from the Court of Appeal. Since I have given permission under 42(3) to enable the claimants to apply to the Court of Appeal for permission to appeal, it seems to me that it would be right to stay the costs order pending the outcome of any application to the Court of Appeal and/or the expiration of the time limit for making the application to the Court of Appeal for permission to appeal.[68]Thank you very much.

Cited in 5 later judgments