Vexatious litigant - civil restraint order - guidance on remedies available to prevent abuse of process

Bhamjee v Forsdick and Others: CA (Lord Phillips of Worth Matravers, Master of the Rolls and Lords Justice Brooke and Dyson): 25 July 2003

The claimant brought actions against, among others, five barristers who had appeared for the successful parties in a planning dispute in relation to the claimant's premises.

His applications for permission to appeal against various decisions of a High Court judge striking out the claims were refused by a two-judge court, which, having identified a problem with persistent applications and proceedings totally devoid of merit being brought by a small number of litigants with no fee disincentive, adjourned the matter to a three-judge court for consideration.

The claimant in person; Andrew R Nicol (instructed by Barlow Lyde & Gilbert) for the defendants; Paul Gott (instructed by the Treasury Solicitor) as advocate to the court; Adam Tolley (instructed by the Treasury Solicitor) for the Attorney-General with a watching brief.

Held, giving guidance on the range of remedies available to courts under their inherent jurisdiction to protect their processes from abuse by vexatious litigants, that courts should keep a record of claims judges considered to be totally devoid of merit, and where a litigant persistently made such applications or claims, the court should consider making a civil restraint order restraining further proceedings in the same proceedings without permission of the court, or an extended civil restraint order for up to two years restraining the issuing of proceedings in related matters without permission, or a general civil restraint order which required the litigant to obtain permission before instituting any proceedings for up to two years.

(WLR)

Action by government department to recover overpayments alleged to result from unlawful price fixing - Serious Fraud Office investigation into defendants - defendants unable to call as witnesses former employees having relevant knowledge because of investigation - not entitled to stay of proceedings

Secretary of State for Health and others v Norton Healthcare Ltd and others: ChD (Mr Justice Lloyd): 24 July 2003

The claimants brought an action against the defendants to recover sums which they claimed they had overpaid for the drug Warfarin as a result of the operation by the defendants of an allegedly unlawful price fixing cartel.

The Serious Fraud Office was investigating the case to discover whether a criminal offence had been committed.

As a consequence of the criminal investigation, the defendants were unable to call as a witness any person who had been employed by them at the relevant time and who had knowledge of the relevant events.

They claimed that there had been a breach of their right to a fair trial under article 6 of the European Convention on Human Rights and they made an application to have the proceedings stayed.

Michael Briggs QC and David Drake (instructed by Peters & Peters) for the claimants; Nicholas Green QC and Fergus Randolph (instructed by Roiter Zucker) for the defendants.

Held, refusing the defendants' application, that both the claimants and defendants were entitled to a fair trial and that witness unavailability was a risk inherent in all litigation; that there was no guarantee that the witnesses would become available at a later date once the criminal matter was concluded; that each case concerning the issue as to whether or not a matter should be stayed had to be considered on its own facts, and that the fact that the claimants were an organ of the government and were responsible for the unavailability of the witnesses did not breach the principle of equality of arms, and was not sufficient to justify a stay of the proceedings.