Report No. 192
Human Rights and restricting an existing right of appeal (ECHR and UK):
This question of giving a right to appeal arises because several statutes debar an appeal against an order declaring a person as a vexatious litigant. Or where leave is refused for filing fresh actions. In Bhamjee v. David Fordstick, 2000(1) WLR 88, Lord Phillips referred to the Strasbourg principles in Belgian Linguistics case 1 EHRR 252, (283)(Para 9) where it was held that Art 6 did not guarantee a right of appeal but that where it was granted there should be no discrimination unless there was legitimate reason. The European Court had observed in that case as follows:
"Article 6 of the Convention does not compel States to institute a system of appeal courts. A State which does set up such courts consequently goes beyond its obligations under Article 6. However, it would violate that Article, read in conjunction with Art 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions."
Lord Phillips said that where a litigant can be shown to have persistently abused the processes of the court by making applications and instituting proceedings which have been adjudged to be totally devoid of merit, despite earlier restraints, this is a legitimate reason why the time should come when he is limited to one chance of showing that the new action he wishes to bring, or the new application he wishes to make, is not totally devoid of merit.
If it arguably has merit, then of course, it should be permitted to proceed in the usual way. Such a procedure of giving only one chance and not allowing a second chance in appeal is valid. In Ebert v. Official Receiver, 2001 EWCA (civ) 340: 2002(1) LR 320 (CA) the court held that the equivalent statutory procedure in section 42(4) of the 1981 Act was convention compliant. Compare the approval of the European Commission on Human Rights in H v. K, (1985) 45 D&R 281, which Buxton LJ cites in para 8 of the judgment in Ebert v. Official Receiver".
Lord Phillips then referred to the situations in which an appeal could be foreclosed by judicial order (under section 42(4) refusing leave to appeal) He said:
"If a litigant subject to an extended civil restraint order or a general civil restraint order, continues to make the requisite applications pursuant to that order which are customarily dismissed on the grounds that they are totally devoid of merit, a Judge may, if he thinks fit, direct that if any further application is dismissed on the same grounds, the decision will be final. Thereafter the appeal court will have no jurisdiction to grant permission to appeal against any subsequent refusal of permission."
Such restrictions will be Strasbourg compliant, Lord Phillips held.