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Report No. 192

(iii) Bhamjee v. Forsdick, 2004(1) WLR 88(CA) (25th July, 2003)

This case came before three Judges ad directed in the last Judgment. We have already referred to this judgment by Lord Phillips MR and two other learned Judges in extenso. Here we shall refer to the factual part of the case and to other aspects.

In this case, the Court of Appeal passed an order, in addition to those passed earlier, namely an 'extended civil restraint order, on an application by five Barristers, whom Bhamjee had impleaded as respondents. Their only fault was that they represented the opposite party successfully in the earlier stages of the litigation.

After referring to the historical development of the 'inherent' power jurisdiction to curb vexatious actions which amounted to abuse of the process of the Court (vide Cocker v. Tempest, (1840-41) 7 M&W 501, Connelly v. DPP, 1964 A.C 1254, Bremcu Vulcan etc. v. South India Shipping Corporation, 1891 AC 909, Taylor v. Lawrence, 2002(3) WLR 640, the Court referred to the statement of Brooke J in AB and others v. John Wyeth & Brother Ltd., 1997(8) Med L.R 57 to the effect that the identification of the classes of vexatious litigation is never closed.

He referred to Taylor v. Lawrence, 2003 QB 528 wherein it was held that it was open to the court, under its inherent power, to re-open an earlier decision of the Court. The Court of Appeal advocated to the step by step proceedings in paras 38, 39- 40, 41-42, 43-47. 48-51 - and these were summarized again in para 53. These final guidelines can be briefly stated as follows:

(a) initially, an order could be passed under CRP 3.3 striking out the action or applications, on the Courts own initiative, if it appears to be totally devoid of merit.

(b) then, if number of applications were dismissed as being without merit, an order called the Grepe v. Loam order could be passed that no further applications in those proceedings without first obtaining leave of the Court be filed. If no such leave is sought for, such fresh applications could be dismissed.

(c) If, there is persistent vexatious behaviour, a Judge of the Court of Appeal or High Court or a designated Civil Judge in the County Court should consider whether 'an extended civil restraint order' could be passed to be in force for a period of 2 years, restraining him from instituting proceedings or making applications in the Courts identified in the order or concerning any matters involving or relating to or touching upon or leading to proceedings in which it is made without permission of a Judge identified in the order. Any application should be made on paper and will be dealt with on paper.

(d) If such an order as stated in cl (c) is not found effective, a Judge of the High Court or a designated Civil Judge in the County Court should consider whether the time has come to make a 'general civil restraint order' against him. Such an order will have the same effect as an extended civil restraint order except that it will cover all proceedings or applications in the High Court, or in the identified county court, and as the case may be,- where the relief is claimed in a disguised fashion with a view to contend that it is not covered by the order in cl (c) above. This could be for a period of 2 years.

(e) If such an 'extended civil restraint order' or a 'general civil restraint order' are not effective, and he is still moving applications which are rejected as devoid of merit, the High Court or the identified County Court may consider whether it is appropriate to make any subsequent refusals of permission 'final'. Thereafter, any subsequent refusal of permission - on the ground of the proceedings or application being devoid of merit - will not be applicable unless the Judge who refuses permission himself grants permission for appeal. These are under inherent powers.

(f) The other party may indeed apply for the passing of any such orders as stated above.

(g) Finally, the Attorney General could move for a section 42 order to declare him as a vexatious litigant, get it published in Gazette. Thereafter section 42 order will govern.

After laying down the above guidelines, the Court of Appeal referred to the plea of the five Barristers. The Court held that the application of Mr. Bhamjee for action against the lawyers for allegedly misleading the Court was 'totally devoid of merit'. The Court heard the counsel appearing for the Barristers and Mr. Bhamjee. It was shocking that Mr. Bhamjee, instead of trying to sustain his plea against the five Barristers, threatened to file cases against the counsel who were appearing for these Barristers. The Court thus said it was a fit case for 'an extended civil restraint order'. It gave seven directions:

(1) For two years, claimant shall not make any further application or take steps in the Court of Appeal, High Court or District Registry or County Court against these five Barristers and/or their representative in or out of or concerning any matters involving or relating to or touching upon or leading to these proceedings, without permission as stated in para (2),.

(2) He will apply to Master Bowman for permission to initiate them and it will be dealt with on paper alone.

(3) If he wishes to appeal against the decision of the Bowman, he must seek permission from (a) Master Bowman, and thereafter (b) from Park J, by following same procedure and if they refuse leave, no application for leave will lie to the Court of Appeal.

(4) Any amendment or discharge of this order could be made only by Park J, after initially writing to Master Bowman. Disposal will be on paper alone.

(5) Anything done by Mr. Bhamjee against the five Barristers can be ignored by them.

(6) Mr. Bhamjee is not to apply before Master Bowman under para (2) or seek permission to appeal as per para (3), without giving notice Barlow Lydl & Gilbert, six clear days in advance.

(7) If Master Bowman and/or Park J are not available for some reason, another Master and/or Judge may be assigned by the Vice-Chancellor

(8) A penal notice should be incorporated

(9) The above order will remain until an order is made under section 42 and an order is passed under that section,- unlimited in time.

These various steps were referred to in order that the procedure did not contravene the principle of 'access to justice' contained in Art 6 of the Convention.

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