Senior -Milne v Secretary of State for Justice [2012] EWHC 3062 (Admin)

[2012] EWHC 3062 (Admin)Case No CO/12363/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 October 2012
Before
THE HONOURABLE MR JUSTICE COULSON
Between
Graham Nassau Gordon Senior-MilneClaimantSecretary of State for JusticeDefendant
The Claimant was not present or representedMs. Sarah-Jane Davies (instructed by The Treasury Solicitor) for DefendantHearing Hearing date: 30 th October 2012
Judgment

The Hon. Mr. Justice Coulson:

[1]Introduction The claimant is the subject of a Civil Restraint Order (“CRO”). He is therefore subject to Paragraph 10 of Schedule 2 to the Civil Proceedings Fees Order 2008 (SI 2008/1053). I will call that “the Fees Order”. This has the effect that, if the claimant wants to seek permission to appeal the CRO, he is required to pay the prescribed fee of £80.00. If permission is subsequently granted, the fee is refunded. The claimant contends that this requirement is incompatible with Article 6 of the European Convention on Human Rights and/or that its application in his case is a breach of his Article 6 rights.[2]The CRO On 16th December 2008, the claimant issued proceedings in Newcastle County Court against his former employers, Lloyds TSB Bank, and others. He served his particulars of claim on 8th April 2009, claiming in excess of £4,000,000. The following day Lloyds gave notice of their intention to defend. On 6th May 2009, (in other words, just within time), Lloyds sought to extend time for the service of their defence. That application was granted on 13th May 2009. On the same day, Lloyds filed their defence. However, the day before that, that is to say 12th May 2009, the claimant’s application for judgment in default was received by Newcastle County Court. On 15th May 2009, that application was refused on the grounds that the time for the service of the defence had already been extended and that, moreover, a defence had actually been filed and served.[3]On 19th August 2010 (14 months out of time), the claimant sought to appeal against the decision refusing his application for a default judgment. On 12th November 2010, HHJ Walton QC refused the application for permission to appeal out of time and, for a number of reasons, made a limited CRO. This provided that the claimant was obliged to seek permission from one of two named District Judges if he wanted to make any further applications in the County Court proceedings. The CRO was therefore designed to limit the claimant’s ability to launch satellite applications, but it had no effect at all on the progress of the proceedings themselves and did not prevent the claimant from pursuing those claims.[4]It is instructive to set out part of HHJ Walton’s judgment, particularly as it was given at the end of a lengthy telephone hearing (the claimant having alleged that ill-health prevented him from travelling to court) in which the claimant played a full part. Having set out how and why the appeal against the order of 15th May 2009 was both hopeless and woefully out of time, HHJ Walton went on:
“20. In the meantime the case has continued. One has only to look at the size of the file to see the resources which the court has committed to it. There have been two case management conferences and much correspondence, all of which would be wasted if permission to appeal was given and default judgment entered. There would be significant prejudice both to the defendant and to the administration of justice in wasting the time and resources so far committed to the claim. 21. Whilst Mr. Senior-Milne says he is a litigant in person, and so should be treated with special care, it is only right to point out that, as both the lengthy pleadings and his skeleton arguments for purposes of appeal show, he is a litigant of well above average sophistication. He is able to research the law and construct lucid arguments on the law and facts. He is entitled to consideration as a litigant in person but it should not be assumed that he is ignorant of his rights or unable to analyse court orders when occasion demands. 22. I take the view that the renewed application for permission to appeal is wholly without merit. The rules require me to consider whether a civil restraint order should be made. I consider it should. I am concerned that the claimant is not mindful of his own duty to help the court use its resources proportionately in dealing with the claim.”
Based on my own reading of the voluminous emails and other documents which the claimant has sent to the court in these judicial review proceedings, I conclude that he remains wholly oblivious to his obligations as a self-representing party, to use court resources proportionately.[3]The Application for Judicial Review.[5]On 29th November 2010, the claimant issued an application seeking permission to bring judicial review proceedings following the decision of HHJ Walton on 12th November 2010. The application was in four parts, namely:(a) A challenge to the validity of the requirement in the Fees Order that the payment of the fee was necessary before the application could be made;(b) A challenge to the CRO on the basis that it was based on an unlawful earlier order (namely the order of 15th May 2009 which refused the application for judgment in default);(c) A challenge to the CRO on the basis that it was made despite the fact that two “totally without merit” applications had not been made; and(d) A challenge to the CRO on the basis that the claimant had not had an opportunity to make representations about it.[6]This application for judicial review has been dealt with at Leeds Combined Court Centre, the closest administrative court centre to Newcastle (where the underlying proceedings are ongoing) and Morpeth (where the claimant lives). The application is, however, just one of a number of judicial review applications being pursued by the claimant in Leeds. One of their common features has been the repeated delays that have been occasioned by the claimant’s failure to attend the court hearings which have been fixed weeks or months before. That is a matter to which I shall return in a moment.[7]On 30th November 2010, HHJ Kaye QC refused an application for an interim relief order. Although the permission hearing was due to take place in early 2011, the claimant complained about having to travel from the North East to Leeds. To accommodate the claimant, the hearing was then fixed at Berwick Magistrates’ Court, but he again complained that the venue was inconvenient. Eventually, the hearing took place over the telephone on 2nd March 2011.[8]At the hearing on 2nd March 2011, HHJ Behrens granted the claimant permission to bring a judicial review claim in respect of the fee point only (paragraph 5(a) above). However, the claimant then failed to comply with the subsequent order of HHJ Gosnell of 9th June 2011 with a result that the judicial review proceedings were struck out. On 30th August 2011, Sullivan LJ refused the claimant’s application for permission to appeal against the rejection of the other three grounds of his original application for judicial review (namely paragraphs 5(b), (c) and (d) above). Sullivan LJ certified that the application was “totally without merit”.[9]On 30th September 2011, HHJ Langan QC allowed the second reinstatement of the judicial review claim, which was of course limited to the fee point. The substantive hearing was fixed for 8th February 2012.[4]Further Delays[10]Unhappily, there have been a number of subsequent delays. The hearing on 8th February was adjourned because of the late service of the documents on the defendants. The re-fixed date of 3rd April 2012 was adjourned due to the claimant’s alleged ill-health. The re-fixed date of 29th May 2012 was vacated, this time due to the apparent ill-health of the claimant’s mother.[11]Today’s hearing was fixed some time ago. In the course of the claimant’s intemperate correspondence with the court staff at Leeds, there was an indication some days ago that he might seek yet another adjournment. He was told that it was very likely that the hearing would go ahead. Predictably perhaps, yesterday (29th October 2012), the claimant did seek to adjourn today’s hearing, asserting that he was suffering from stress as a result of both this and the many other sets of proceedings which he has commenced.[12]There was, and remains, no independent medical evidence in support of this (or any other) application for an adjournment. The defendants have incurred considerable costs and would have suffered significant prejudice if the hearing was adjourned again. On the other hand, since the fees point is entirely a matter of law, on which the claimant has already provided written material, there was no prejudice to him arising out of his failure to attend court this morning. In any event, it must be better for the claimant for this long running dispute to be decided, one way or another, in order that the stress caused by these various proceedings, of which he vociferously complains, might at least be lessened. For all those reasons therefore, I concluded that, in accordance with the overriding objective, the application for yet another adjournment should be refused, and the hearing went ahead in the claimant’s absence.[13]As a result of that, I have been anxious to have regard to any updated material provided by the claimant. In that regard, I have seen an extremely long witness statement, running to 261 paragraphs, which he served last week in connection with other judicial review proceedings currently ongoing in Leeds. I note that the statement was served following his non-attendance at hearings that were due to take place on 19th October 2012. The statement was served by order of HHJ Langan QC but, although the judge required him to provide independent medical evidence of his assertion that he could not attend that hearing because he was ill, no such evidence is contained in the claimant’s statement. The order of Judge Langan, and the contents of the subsequent statement, only served to confirm my view that this hearing had to go ahead today.[5]The Fees Regime[14]Paragraph 1(2) of Schedule 2 of the Fees Order states that paragraphs 2, 3 and 4 which are concerned with full or part remission of fees, are subject to paragraph 10 which is in these terms:
“10. Vexatious Litigants. (1) This paragraph applies where – (a) A restraint order is in force against a party; and (b) The party makes an application for permission to 1) Issue proceedings or take a step in proceedings as required by the restraint order; 2) Apply for amendment or discharge of the order; or 3) Appeal the order. (2) The fee prescribed for application by Schedule 1 is payable in full (3) If the court grants the permission requested the applicant will be refunded the difference between – (a) The fee paid; and (b) The fee that would have been payable if this Schedule had been applied without reference to this paragraph.” (1) This paragraph applies where – (a) A restraint order is in force against a party; and (b) The party makes an application for permission to 1) Issue proceedings or take a step in proceedings as required by the restraint order; 2) Apply for amendment or discharge of the order; or 3) Appeal the order. 1) Issue proceedings or take a step in proceedings as required by the restraint order; 2) Apply for amendment or discharge of the order; or 3) Appeal the order. (2) The fee prescribed for application by Schedule 1 is payable in full (3) If the court grants the permission requested the applicant will be refunded the difference between – (a) The fee paid; and (b) The fee that would have been payable if this Schedule had been applied without reference to this paragraph.”
[15]In this way, a party who is the subject of a CRO, and who makes a relevant application for permission, must pay the prescribed fee in full, even if he or she would otherwise have been eligible for remission of the fee. If permission is subsequently granted, then the fee is refunded.[6]Article 6 and the relevant Case Law 6.1. General[16]The relevant part of Article 6 is in the following terms:
“1. In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”
[17]The right of access to a court does not, in principle, prevent the state from taking action to control the activities of vexatious litigants. In Forsdick v Bhamjee [2004] 1 WLR 88, the Court of Appeal summarised the Strasbourg case law thus:
“16…These cases proclaim the message that the right of access to the courts may be subject to limitations in the form of regulations by the state so long as two conditions are satisfied: (i) the limitations applied do 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; (ii) a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.”
I summarise briefly the cases in which those two principles have been considered. (i) the limitations applied do 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; (ii) a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.” 6.2. Restrictions[18]In Kreuz v Poland[2001] ECHR 398 (Application Number 28249/95, ECtHR judgment of 19th June 2001) the court said:
“59. Having regard to the aforementioned statement of principles established by its case-law, the Court once again recalls that it has never ruled out the possibility that the interests of the fair administration of justice may justify imposing a financial restriction on the individual’s access to a court…Furthermore, the Court considers that while under Article 6(1) fulfilment of the obligation to secure an effective right of access to a court does not mean merely the absence of an interference but may require taking various forms of positive action on the part of the state, neither an unqualified right to obtain free legal aid from the state in a civil dispute, nor a right to free proceedings in civil matters can be inferred from that provision… 60. The Court accordingly holds that the requirement to pay fees to civil courts in connection with claims they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6(1) of the Convention. It reiterates, however, that the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them, and the phase of the proceedings at which that restriction has been imposed, are factors which are material in determining whether or not a person enjoyed his right of access and had a hearing by a tribunal.”
[19]The ability to pay is of course relevant in any consideration of the validity of a particular restriction, but it is not decisive. In Tolstoy-Miloslavsky v UK (1995) 20 EHRR 442, it was held that there was no breach of Article 6, even though the effect of the financial restriction in that case meant that the appellant could not pursue his claim further. The appellant had lost a libel action and was ordered to provide a payment into court by way of security for costs in order to pursue an appeal. He could not afford to pay the sum ordered, which brought his case to an end, but in the circumstances that was not held to be a breach of Article 6. 6.3. Legitimate Aim[20]In H v UK[1985] 45 DNR 28a case concerned with vexatious actions rather than the payment of fees as such, the ECHR said that:
“Some form of regulation of access to the court is necessary in the interests of a proper administration of justice and must therefore be regarded as a legitimate aim.”
[21]In Podbielski v Poland [2005] ECHR 543 (Application Number 39199/98 ECtHR judgment of 26th July 2005) the court drew a distinction between court fees designed to generate income on behalf of the state, and those providing a barrier to protect the justice system against an unmeritorious appeal or application. Not surprisingly, the court concluded that more rigorous scrutiny was required within the former situation. That principle has been more recently restated in the case of Marina v Latvia [2010] ECHR 1626(Application Number 46040/07 ECtHR judgment of 26th October 2010) where at paragraph 51 the court referred to a number of previous decisions and said:
“The court has also noted that restrictions of a purely financial nature which are completely unrelated to the prospect of success of the claim should be subject to a particularly rigorous scrutiny from the point of view of the interests of justice…”
[7]Analysis / Principle[22]As a matter of principle I conclude that the requirement for vexatious litigants to pay a fee in these circumstances is not incompatible with Article 6. There are a number of reasons for that.[23]I am in no doubt that the requirement to pay the fee is a proportionate means of achieving a legitimate aim. It is proportionate because the fee is modest. The legitimate aim is to make vexatious litigants at least think twice before making applications which cost the court service much but which (save for this fee) cost the litigant nothing. The civil justice system is currently bedevilled by litigants who repeatedly issue hopeless applications, causing real cost to the court service and wasting the time of hard-pressed court staff. A system which seeks to reduce the number of those applications, and which seeks to recover at least a part of the cost of dealing with such applications as are made, is not only legitimate but, in my view, a vital necessity.[24]There is evidence before me in the form of a statement from Jane Sigley, the Head of Court Fees Policy at the Ministry of Justice. She has calculated that the average cost of an application of this type by a vexatious litigant is £285.00. Accordingly the fee of £80 does not cover the cost of the application, and there is no question of the state making a profit from the £80 fee.[25]As Ms. Davies correctly pointed out during the course of her clear and succinct submissions, that is a complete answer to the claimant’s apparent argument (which can be found in the lengthy statement to which I have previously referred), that the requirement to seek permission acts as a sufficient deterrent and that the requirement for a fee as well is disproportionate. If the fee acts to deter unmeritorious applications, so much the better; if it does not act as a deterrent, and the application is made, the fee serves to reduce the state’s losses incurred as a result of the making of the application. There is no disproportionality.[26]In addition, the requirement to pay the fee does not inevitably restrict or reduce an individual’s access to the court so as to impair the very essence of the right conferred by Article 6. As I have said, the sum required to be paid, in this case £80, is, on any view, modest. It is far from being the sort of sum that would prevent a litigant from being able to pursue a valid application.[27]Accordingly, I conclude that the requirement for a vexatious litigant to pay a fee, in the circumstances set out in paragraph 10 of Schedule 2 to the Fees Order, is proportionate; it is in pursuit of a legitimate aim; and it does not impair the essence of an individual’s right of access to justice. On that basis alone, this claim for judicial review must fail. However, when an analysis is done of the claimant’s particular factual circumstances then the reasons for the rejection of his claim for judicial review become overwhelming.[8]Analysis / Fact[28]In my view, the suggestion that in this case the claimant’s rights under Article 6 have been impaired, whether significantly or at all, is fanciful. First, the CRO that was made was very limited. It only relates to the County Court proceedings. It was made at the outset, before the claimant incurred large costs. It was only made at all because the claimant had issued an obviously hopeless appeal, way out of time, against an order refusing to grant judgment in default of a defence against a defendant who had already served a defence.[29]Most tellingly of all, the CRO only prevents the claimant from issuing satellite applications without permission. It does not seek to put any sort of brake upon his ability to pursue the County Court claim itself. Thus the very essence of his Article 6 right was preserved by the particular words of the CRO. Were it not for these satellite applications, it is very likely that those proceedings (and thereafter the claimant’s claim for £4,000,000) would have been concluded some time ago.[30]Secondly, I am no doubt that the claimant could, if he chose to do so, pay the sum of £80. The claimant is an accountant, something of which he regularly reminds the court staff dealing with his emails and correspondence. He obviously has had access to considerable property because, in his most recent statement, he states that he has put that property into trust. He does not say what property has been put in trust, or in whose favour the trust or trusts might be, or the nature and extent of his access to the trust property. Moreover, there is not a scrap of independent or third party evidence to suggest that the claimant cannot pay the £80.[31]In earlier documents, the only material provided by the claimant in relation to his financial position was his assertion that he was in receipt of Jobseekers Allowance. The unspoken assumption was that, in consequence, he could not pay the court fee. That assumption is misconceived. As Ms. Davies has helpfully pointed out, the Jobseekers Act and the Jobseekers Allowance Regulations make clear that a person can be in receipt of Jobseekers Allowance even if they own their own home and have as much as £16,000 by way of savings. Such a person could, therefore, pay the £80 fee.[32]Thirdly, of course, the fee will be repaid if the application is successful. The claimant is therefore being asked by the court to do no more than back his own judgment - to the tune of £80 - as to the merits of any application for permission that he might want to make. That could not possibly be described as unfair. On the contrary, it is the sort of decision, balancing possible benefit with possible costs risk, which an ordinary litigant has to make every time he or she considers making an application to the court. In my view, there cannot be one rule for those parties who conduct their litigation in accordance with the CPR, and another for those, like the claimant, who do not, and who, in consequence, are the subject of a CRO.[9]Summary[33]Paragraph 10 of Schedule 2 to the Fees Order is not incompatible with Article 6.[34]On the facts, the claimant’s rights under Article 6 have not been affected in any way by the requirement that, pursuant to Paragraph 10, the fee is to be paid by the claimant in order to allow him to seek permission to appeal.[35]For those reasons, the claimant’s application for judicial review is refused.

Cited in 1 later judgment