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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Attorney General v Miles & Anor [2007] EWHC 1729 (Admin) (20 June 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/1729.html Cite as: [2007] EWHC 1729 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		20 June 2007

1. MR JUSTICE MITTING: The Attorney General applies for a Civil Proceedings Order under section 42 of the Supreme Court Act 1981 against John and Bridget Miles. He relies on seven sets of proceedings, the first partly by way of background only. All have their ultimate root in events in 1986 and 1987.

The first case

2. Mrs Miles' father died in 1959. Pursuant to his will, a trust was established of which the only asset was a tenanted house at 343 Lunsford Lane, Larkfield in Kent ("the house"). Mrs Miles was entitled to the income of the trust for life, with the remainder to the two sons of her marriage to Mr Miles. In 1984 the tenant vacated the house and Mrs Miles and her two sons moved in. It was in poor condition. Mr Miles, who was working abroad, spent £5,853 on repairs. Mr and Mrs Miles sought advice from Christopher Busby, a chartered accountant, and Richard Pengelly, a solicitor. Mr Pengelly advised them that the existing trustees should be replaced, and that they should buy the house for £40,000 -- its estimated value of £44,000, less £3,500, the estimated costs of repairs which remained to be done.
3. Mr Pengelly and Mr Busby were appointed trustees on 8 September 1986 in place of the existing trustees. On 30 December 1986, contracts were exchanged for the sale of the house to Mr and Mrs Miles for £40,000. The sale was completed on 20 January 1987. £5,853 was reimbursed to Mr Miles by the trustees. Thus far there was then no dispute between Mr and Mrs Miles and Mr Pengelly and Mr Busby.
4. A dispute arose in 1987 about payment of the school fees of the two boys. Mr and Mrs Miles claimed that Mr Pengelly and Mr Busby had agreed before the sale of the house that two years' school fees would be paid out of the trust fund. £2,518.84 was paid on 21 January 1987, but by a letter dated 12 February 1987, Mr Busby stated that the trustees would henceforth pay only £1,000 per term toward the school fees. From May 1987 to April 1989, Mr and Mrs Miles paid, according to their calculation, £10,368.58 in school fees. The house was sold in September 1998 for £77,000.
5. By an action commenced on 13 June 1989, Mr and Mrs Miles claimed £10,368.58, plus interest on borrowing to fund it, from Mr Pengelly and his firm, Pengelly and Rylands. The cause of action was negligence on the footing that Mr and Mrs Miles would not have bought the house but for their belief, induced my Mr Pengelly and Mr Busby, that the school fees would be paid. Mr Pengelly denied the existence of a duty of care and its breach, and claimed that, at all times, Mr and Mrs Miles knew that the terms of the trust were discretionary, and so they could not have had the expectation about payment of the school fees which they claimed. The action was funded by legal aid.
6. On 19 June 1990, £2,000 was paid into court in satisfaction of the claim. Two junior counsel advised on prospects: one advised that it was likely to succeed but that damages would be limited to about £5,000; one that it would fail. The advice of Mr Colin Rimer QC was sought. He provided an advice of 51 pages, dated 30 August 1992. It is clear from the terms of that advice that by then Mr and Mrs Miles had become convinced that the actions of Mr Pengelly and Mr Busby were motivated by dishonesty, and that their losses had reached a six-figure sum. Mr Rimer advised that their claim for damages for negligence would fail, that a court would conclude that they had in any event suffered no loss in consequence, and that their accusations of dishonesty against Mr Pengelly and Mr Busby were baseless.
7. In consequence of that advice, on 6 January 1993, legal aid was withdrawn. The action went to sleep. Mr Pengelly died on 3 February 1999. An increase in the damages claimed, apparently against Mr Pengelly and Mr Busby as trustees, to £450,000 was intimated in correspondence. On 1 February 2001, the case was transferred to the Mayor and City of London County Court. On 15 May 2001, on the defendant's application, the statement of case was struck out and the claim dismissed under CPR 3.4(2)(b) by HHJ Marr-Johnson. He concluded that the very considerable delay had caused extensive prejudice to the defendants, and that it would be unfair for the case to hang over them any longer. He was not invited to, and did not, express any view about the underlying merits of the claim. He refused permission to appeal against his order.
8. On 6 June 2001, permission to appeal was refused on the papers by Blackburne J. On 28 June 2001, after an oral hearing, permission to appeal was finally refused by Park J. It is not suggested on behalf of the Attorney General that this claim was vexatious from the start, but it was plainly ill-conducted and contained features typical of vexatious litigation, in particular towards its latter stages. The baseless accusations of dishonesty against Mr Pengelly and Mr Busby, and the inflation of the damages claimed against them from a modest five-figure sum to a large six-figure sum, were harbingers of things to come. It also gave rise to numerous complaints to, amongst others, the Bar Council, the Law Society, the Police, the Institute of Chartered Accountants, the Master of the Rolls, the Legal Services Ombudsman, the Lord Chancellor's Department and the Lord Chancellor personally, the Home Secretary, the Prime Minister, the Police Complaints Authority, the Director of Public Prosecutions, and the Kent Police Authority. In turn, some of those complaints gave rise to litigation in the Administrative Court.

The second case

9. In 1994, Mrs Miles made an accusation of fraud against Mr Pengelly and Mr Busby to Kent County Constabulary. By a letter of 9 December 1994, Kent County Constabulary, having taken the advice of the Crown Prosecution Service, told her that there was no evidence to warrant criminal proceedings against them. In November 1998, Mr and Mrs Miles told Kent Police that new evidence had emerged which supported their complaints. They provided witness statements in support. Detective Inspector Croucher submitted a report to the Crown Prosecution Service, who by letter of 20 May 1999 advised him that in no instance could it be proved that a criminal offence had been committed.
10. On 24 May 1999, they complained to the Chief Constable of Kent Police that Detective Inspector Croucher had acted with intent to pervert the course of justice. The Deputy Chief Constable, Mr Ayling, wrote to inform them that a Superintendent had been appointed to investigate, and the Police Complaints Authority was informed. By a letter of 29 September 1999, the Police Complaints Authority notified Mr and Mrs Miles that it regarded the complaint as unproven. By letters of 14 December 1999, Mr and Mrs Miles accused Mr Ayling of lying, and connivance in dishonesty, and in early 2000 made further complaints against the Chief Constable. The Police Complaints Authority granted "dispensation": in other words, dispensation from the need to investigate the complaints further on the basis that they were repetitious on 25 February 2000 and 10 May 2000, respectively.
11. By a claim issued on 12 May 2000, Mr and Mrs Miles applied for judicial review of the Kent Police Authority's request for, and The Police Complaints Authority's grant of, dispensation. On 9 August 2000, Keene J refused permission to apply for judicial review on the papers. He observed that there was "no basis for judicial review of any of the decisions you seek to challenge". They renewed their application to an oral hearing.
12. On 17 November 2000, Jackson J refused their renewed application. He described the language of the complaints against the Chief Constable and the Deputy Chief Constable as extravagant; the complaints, as without foundation; and the decisions challenged, as justified. He observed that:

"Essentially repetitive complaints have been advanced against an ever-widening circle of public servants. I can see no justification for those complaints."

He ordered them to pay £2,000 costs.

13. Mr and Mrs Miles applied to the Court of Appeal for permission to appeal Jackson J's order, and complained to the Lord Chancellor's Department about Jackson J's conduct of the hearing. Sir Murray Stuart-Smith refused the application on paper on 20 December 2000, observing that "there is no merit in this complaint". They renewed the application to an oral hearing. On 13 February 2001, Aldous LJ refused the renewed application. He described the criticisms of Jackson J's judgment as "niggling complaints". He observed that to give the applicants permission to appeal would be against their interests because they would have to bear the costs of the Kent Police Authority and the Police Complaints Authority of an appeal which he had no doubt would fail.
14. Mr and Mrs Miles submit that this claim was not baseless, and that the judges who dismissed it made errors which vitiate their conclusion. The latter contention is not open to her. They and we must accept the judges' findings as accurate: see Attorney General v Jones [1990] 1 WLR 859 at 863D to F.
15. My conclusion on this litigation is that it demonstrates all of the characteristics of vexatious litigation identified by Lord Bingham LCJ in Attorney General v Barker [2000] 1 FLR 759 at paragraph 19. It had "little or no discernible basis in law". It caused disproportionate expense to the defendants and amounted to a misuse of the court's process.

The third case

16. The next claim was issued out of the Chancery Division on 18 July 2001. It was against Mr Busby and his firm. It alleged, in apparent contradiction of the basis on which the claim against Mr Pengelly had been brought, that the trust gave Mr Busby no discretion as trustee to advance capital from the trust to pay school fees, or the £5,853 paid to Mr Miles to reimburse him the cost of the repairs to the house, and that the sale of the house to Mr and Mrs Miles was a breach of trust, and that Mr Busby in so acting was guilty of fraud and undue influence.
17. By notice of 29 October 2001, Mr Busby applied to strike out the particulars of claim under CPR 3.4. On 25 February 2002, Master Bowles struck out the claim against Mr Busby and ordered Mr and Mrs Miles to pay his costs. No order was sought or made in relation to the claim against Mr Busby's firm because it was acknowledged that there was no realistic prospect of success in the claim against it.
18. In his thorough and accurate written judgment, Master Bowles determined that no claim of undue influence could realistically be made out; that there was no realistic prospect of the claims of fraudulent breach of duty succeeding at trial; that payment of the school fees and repair costs was not a breach of trust unless done for an improper and dishonest motive, and that there was no evidence at all of any such motive. He described the suggestion made in the particulars of claim and advanced in argument that the sale of the house to Mr and Mrs Miles was a scheme devised to permit Mr Pengelly and Mr Busby to profit from the trust by converting its sole asset into cash, and so permitting their professional fees to be paid, as "no more than a fanciful and unrealistic assertion". He refused permission to appeal his order on 29 May 2002.
19. Inevitably, Mr and Mrs Miles applied to the Appeal Court, (the Chancery Division) for permission to appeal. Mrs Miles complained, amongst other grounds of appeal, that her right to a fair hearing under Article 6 of the European Convention on Human Rights had been infringed.
20. On 13 August 2002, Pumfrey J refused the applications on paper. He observed that "the documents reveal no case, however faint, that Mrs Miles has been deprived of her right to a fair hearing", and that Master Bowles' judgment was right, and that the claim had no reasonable prospects of success. The applications were renewed to an oral hearing, which was heard by Pumfrey J on 21 November 2002. He refused the renewed applications in a detailed judgment of some length, in which he stated his agreement with Master Bowles' approach, findings and conclusion. He said he had no hesitation in refusing permission to appeal. He also observed, plainly accurately, that:

"Mrs Miles is prepared to take any issue with any error, however small, and at any problem, however irrelevant, in suggesting that the Master's judgment is, as she put it to me, unlawful."

21. Mrs Miles complained to the Lord Chancellor. On 10 June 2005, Mrs Miles applied for permission to re-open Pumfrey J's decision of 21 November 2002 under CPR 52.17(11). Pumfrey J rejected it in a written ruling dated 26 July 2005. Having reviewed the "shocking history" of this and other litigation to which reference is made below, he referred the matter to the Attorney General. It is that reference which promoted this application under section 42.
22. Mr and Mrs Miles make the same submission in relation to this litigation as in relation to the second case. In my judgment, the same considerations as those which apply to that case apply to this one. It was vexatious.

The fourth case

23. In November 2003, Mr and Mrs Miles complained to Kent Police that Mr Busby had "assaulted" Mr Miles by causing him mental anguish, and had by deception and dishonesty induced him to buy the house with Mrs Miles. The complaint was supported by a 19-page closely-typed witness statement, signed by Mr Miles on 10 November 2003, and a shorter unsigned witness statement by Mrs Miles. The witness statements covered the same ground as that rehearsed in earlier litigation.
24. On 27 November 2003, Detective Inspector Fairhurst of Kent Police Fraud Squad notified Mr and Mrs Miles that he was not willing to conduct a criminal investigation into their complaints. The letter was detailed, reasoned, and to any objective observer, the decision made was plainly right. It prompted a seven-page, close-typed reply from Mrs Miles, and a claim for judicial review of the decision not to investigate, issued on 23 January 2004 by him. On 18 February 2004, Sullivan J refused permission on the papers. He observed:

"You must face the fact that there is not the slightest chance of any prosecutor being able to establish beyond a reasonable doubt that there was dishonesty ... in the exchanges between yourself and Mr Busby in 1986/1987."

25. The application was renewed to an oral hearing, with Mrs Miles acting as Mr Miles' McKenzie Friend. On 1 April 2004, Gage J refused the renewed application and ordered Mr Miles to pay the costs of the acknowledgment of service and of the defendant's attendance at the hearing. Gage J reviewed the history of the litigation in his judgment. He concluded that there were no arguable grounds for judicial review.
26. It will come as no surprise to anyone familiar with this matter that Mr Miles applied to the Court of Appeal for permission to appeal Gage J's order on familiar grounds: that he was "UNFAIR", and his order was unlawful. On 19 July 2004, Laws LJ refused permission to appeal on the papers, observing that "the application is completely hopeless".
27. The next step too is predictable. The application was renewed to an oral hearing, at which Mr Miles was represented by Mrs Miles on 28 July 2004, which was also refused by Laws LJ, who stated that "there is simply nothing in the applicant's criticisms of the judge", and that "the application to this court is groundless and misconceived". As it happens, Mr Miles was unable to attend the hearing. This prompted him to apply on 17 August 2004 under CPR 23.11 for it to be relisted. There followed extensive correspondence with the Civil Appeals Office. It was refused on the papers by Laws LJ on 29 June 2005. Inevitably, it was renewed to an oral hearing on 24 August 2005 before Laws LJ and Lloyd J. Laws LJ stated:

"In my view, this litigation is over and done with and incapable of being revived ... I see no proper basis on which there could be any further hearings ... This case is at an end."

It was not quite. On 15 December 2005, Mr Miles' petition for permission to appeal to the House of Lords was refused by the Appeal Committee. Mrs Miles on behalf of Mr Miles submits that the judges' decisions were unfair and unjust.

28. As in the second case, this court cannot go behind their findings. This action too was vexatious. It displayed the Barker characteristics to an extreme degree.

The fifth case

29. Meanwhile, Mrs Miles did not take Pumfrey J's "no" in the case against Mr Busby for an answer. In April 2003, she applied to the European Court of Human Rights, claiming that she had not received a fair hearing before Master Bowles and Pumfrey J. On 11 September 2003, the application was declared inadmissible without reasons being given, in accordance with the court's practice -- a practice justified by the tidal wave of applications to that court, 95 per cent of which, or more, were, and were deemed, inadmissible.
30. On 24 June 2004, Mrs Miles wrote to the Foreign Secretary calling upon him to write to the European Court of Human Rights to obtain a statement of the reasons for the declaration of inadmissibility. By a letter to Mrs Miles' Member of Parliament on 4 August 2004, the Minister of State for Europe refused to do so. By a claim form issued on or soon after 26 October 2004, Mrs Miles sought judicial review of the Minister of State's refusal.
31. On 15 December 2004, Pitchford J refused permission on the papers. The application was renewed to an oral hearing. On 7 March 2005, Richards J refused permission, observing that it was "plainly not irrational" for the Minister to refuse Mrs Miles' request. The only unusual feature of this case is that Mrs Miles did not seek permission to appeal Richard J's order from the Court of Appeal. Mrs Miles submits that this claim had underlying merit. Plainly it did not, and it too was vexatious.

The sixth case

32. The next set of proceedings hark back to the advice given by Mr Rimer QC in 1992. A complaint against him and others to the Bar Council by Mr and Mrs Miles was rejected on 27 May 1993. Mr and Mrs Miles made a complaint to the Legal Services Ombudsman, who rejected it in February 1994. Following the appointment of Mr Rimer QC as a High Court Judge in 1994, Mr and Mrs Miles wrote to the Lord Chancellor's Department on 9 June 1998 alleging that he had "wilfully breached his profession's rules on conduct. His behaviour was dishonest". They categorised it as "a cover up of deceit".
33. By a letter dated 4 September 1998, the Lord Chancellor, Lord Irvine of Lairg, observed that the complaint had already been found by the Bar Council to be unsubstantiated and declined to re-open it. This caused them to write to the Home Secretary and the Prime Minister. It is a tribute to the courtesy of Whitehall officialdom that short replies were elicited from an official at the Lord Chancellor's Department on 8 and 12 October 1998. There the matter rested for nearly six years.
34. In June 2004, Mrs Miles revived the same complaint to Lord Faulkner of Thoroton LC. By a letter of 31 August 2004, he stated his agreement with his predecessor's decision. She issued proceedings on 10 November 2004 seeking judicial review of his decision. On 15 December 2004, Pitchford J refused permission on the papers, observing "this claim is manifestly without arguable grounds". He also observed that her response to a comment by the Treasury Solicitor had been "a further barrage of documents".
35. The application was renewed to an oral hearing. On 7 March 2005, Richards J refused the application, observing that "there are no arguable grounds for this claim". He ordered her to pay the costs of the acknowledgment of service. As in the fifth case, there was no appeal against that refusal. Mrs Miles claims that there was merit in this claim. In my view, there was none, and it too was vexatious.
36. Between the initial refusal on the papers and the oral hearing, on 24 January 2005 the Department of Constitutional Affairs applied for an extended Civil Restraint Order against Mrs Miles. The application was heard by Collins J on 7 April 2005. He concluded that, for procedural reasons and with reluctance, he "was not in a position" to make the order sought. He had earlier stated that, if he were able to make the order on the merits, he would do so. Self-evidently these proceedings cannot count against Mrs Miles, let alone Mr Miles.

The seventh case

37. The seventh and last set of proceedings relied on by the Attorney General do demonstrate that Mr and Mrs Miles were not only determined, but also imaginative litigants. On 4 June 2006, Her Majesty's Solicitor General authorised a making of an application against them under section 42. By a claim form issued on 15 August 2006, Mr and Mrs Miles launched a pre-emptive strike -- a claim for judicial review of that decision.
38. On 23 November 2006, Sullivan J refused permission on the papers. He was plainly right to do so. Although imaginative, the application was pointless and objectively vexatious. The grounds on which Mr and Mrs Miles rely are the same as those on which they seek to persuade us not to make an order under section 42 -- in summary, that their litigation has not been vexatious. To determine their application for permission before the Attorney General's application would therefore simply duplicate the examination which this court must make of the litigation on his substantive application.
39. Mr and Mrs Miles submit that the section 42 application smacks of sharp practice. They do so in substantial part because of a letter written to them by Rebecca Hilsenrath of the Attorney General's office dated 25 July 2006, in which she stated in relation to a letter from them to the Solicitor General about the section 42 decision:

"... you are at liberty to seek the consent of the court to issue proceedings against the Law officers for judicial review of that decision".

40. I am satisfied that there was no sharp practice in that letter, but equally satisfied that it was a mistaken letter to write. It could be read, especially by determined litigants, as an invitation to start a fresh judicial review claim. Accordingly, although I acquit the Attorney General's Office of sharp practice unhesitatingly, I do conclude in relation to the seventh case that, because of that letter, this case should not be counted as vexatious in the catalogue of litigation which I have in substantial part already recited.

The eighth case

41. There is an eighth case. Since the Attorney General's application was issued, there has been a further judicial review claim of which he was unaware until Mrs Miles lodged a supplement to Mr Miles' skeleton argument on 14 June 2007. It harks back to the claim of dishonesty against Mr Busby. On 18 August 2006, Mr and Mrs Miles submitted a written information to a Magistrates' Court alleging that Mr Busby had obtained a pecuniary advantage -- the opportunity to earn remuneration from the trust -- by deception by causing Mr and Mrs Miles to buy the house, contrary to section 16(1)(c) of the Theft Act 1968. On 19 October 2006, based on that information, the magistrates issued a summons against Mr Busby.
42. In April 2007, the Crown Prosecution Service took over the prosecution, presumably under section 6(2) of the Prosecution of Offences Act 1985, and discontinued it under section 23. On 17 April 2007, Miss Howe, of the Crown Prosecution Service, wrote to Mr and Mrs Miles to explain why she considered that the prosecution had no merit. She declined to reveal the material supplied to the Crown Prosecution Service by Kent Police. She reiterated her decision on 20 April 2007.
43. On 21 May 2007, Mr and Mrs Miles issued judicial review proceedings seeking a review of the Crown Prosecution Service's decision to refuse to disclose the material supplied by Kent Police. These proceedings, which arise out of the same events in 1986 as the other proceedings, are clearly vexatious. They demonstrate a worrying extension of the reach of Mr and Mrs Miles' litigation into criminal proceedings, which may in due course have to be met by a further application under section 42 for a Criminal Proceedings Order.

Conclusion

44. Mrs Miles submits on her own behalf and on behalf of her husband, as I have already recited in relation to each separate bit of litigation, that there were reasonable grounds for each claim. She submits that they have not habitually and persistently and without reasonable ground instituted vexatious proceedings following the language of section 42. In particular, they submit that there has been no repetition because no action of the same kind has been brought against any single individual.
45. I reject those submissions. I am satisfied that the conduct of each of them meets the statutory requirements, and that it would be just to make the order sought by the Attorney General.
46. I have set out in unavoidably lengthy detail the history of the litigation in which they have been involved, and my conclusions as to vexatiousness in relation to each. Each has involved private citizens, Mr Pengelly and Mr Busby, or, since 1994, public authorities, in a great deal of pointless, unproductive and costly work. Orders for costs have been made which, as far as I understand, have not been met, save that Mr Busby has obtained a charging order for £18,000 on Mr and Mrs Miles' home. Wholly unsubstantiated accusations of fraud have been made, not only against the two individuals who had the misfortune to become trustees of Mrs Miles' father's will trust, but also against Rimer J and the legal profession generally. It is no exaggeration to state that almost every public authority which has made a decision susceptible to challenge by judicial review, which has had anything, however tangential, to do with the original grievance, has been so challenged. The case against the Foreign Secretary is a good, if extreme, example of this. There is no end in sight, as the recent proceedings against the Crown Prosecution Service demonstrate, unless this court is to put a stop to it by making a Civil Proceedings Order in the case of both Mr and Mrs Miles.
47. It is just possible that, in recent years, Mrs Miles has been the driving force behind the litigation, and that Mr Miles might not, on his own account, have undertaken the actions that he has. However, if an order were only to be made against Mrs Miles, I have no doubt at all that litigation would be continued in the name of Mr Miles with his willing co-operation, albeit by her. Accordingly, there is an urgent need for a Civil Proceedings Order in relation to each of them. I would make the Civil Proceedings Order sought by the Attorney General for an indefinite period in each case.
48. LORD JUSTICE LAWS: I entirely agree. This case well illustrates the need for the section 42 jurisdiction in order to protect scarce judicial resources from being wasted by the pursuit of hopeless and repetitive litigation. That is required in the interests of litigants with proper disputes to be resolved. I have no doubt that a Civil Proceedings Order should be made without limit of time and against both respondents.
49. MR THOMAS: My Lords, could I draw your attention to the claim form which sets out the terms of the order that is sought?
50. LORD JUSTICE LAWS: Yes. Is it in volume 1?
51. MR THOMAS: It is not in volume 1. I can hand you up a copy I have just been given.
52. LORD JUSTICE LAWS: I am sure we have it.
53. MR THOMAS: The only provision that I wish to draw to your Lordships' particular attention is the application for a penal notice, which is at paragraph 4. That is in accordance with the provisions of the White Book at 40B --
54. LORD JUSTICE LAWS: What is the effect of that?
55. MR THOMAS: The effect is that it says:

"An order which restrains a party from doing an act or requires an act to be done should, if disobedience is to be dealt with by an application to bring contempt of court proceedings, have a penal notice endorsed on it as follows..."

So it would allow contempt of court proceedings to be brought in the event that the terms of the order were breached. My Lord, it is in these cases the practice of the Attorney General to apply in appropriate circumstances for these orders, and your Lordship will see that in the case of Perotti, which is in fact a case referred to by Mrs Miles, such a penal notice was attached to the order, and so I ask that it be attached in this case on the basis that it is an appropriate notice to put on so as to not only deter disobedience of the order, but also to put in place appropriate mechanisms for addressing any disobedience that does actually arise.

56. LORD JUSTICE LAWS: Mrs Miles, do you wish to saying anything specifically and only about the application to add a penal notice to the order?
57. DEFENDANT: I do not understand it, actually. I thought that, even with a section 42 order against one, one can approach the High Court for leave to apply.
58. LORD JUSTICE LAWS: That is so.
59. DEFENDANT: If I did that, I can be sent to prison?
60. LORD JUSTICE LAWS: If you ask the High Court Judge for leave to apply to bring proceedings, that is something you are entitled to do. The penal notice does not prevent that.
61. DEFENDANT: In what circumstances would I be sent to prison?
62. LORD JUSTICE LAWS: The penal notice is there so that contempt proceedings can be issued against a person who disobeys the order. I am not here to advise you, Mrs Miles, but you will understand that you would disobey the order if you simply issued proceedings --
63. DEFENDANT: I cannot. You are listed on the computer. You cannot just go and issue proceedings, they check.
64. LORD JUSTICE LAWS: I have no doubt that there will not arise an occasion in which the penal notice would have to be deployed. (pause)
65. My Lord is saying, Mr Thomas, and if I may say so there is force in it, that we should think twice before adding a penal notice in a case where, despite the breadth of our findings as to vexatious conduct, there has been no disobedience to any court order so far as I know. That is right, is it not?
66. MR THOMAS: My Lord, that is right, but, in my submission, it would be a mistake to treat the jurisdiction to add a penal notice as being confined to cases where there were specifically previous examples of breaches of court orders. What the orders of this court seek to achieve is to prevent Mr and Mrs Miles from engaging in the sort of conduct which they have hitherto engaged in, deliberately persistent, and it is right that if Mr and Mrs Miles disobey even the order of this court making that clear, that it ought to be capable of being treated as a contempt of court. The purpose of your Lordships' order is to try to bring to an end multiple applications made by Mr and Mrs Miles. That is properly dealt with --
67. LORD JUSTICE LAWS: I thought that there was -- I suppose it is perhaps only in this building, rather than up and down the country -- a list of persons declared vexatious litigants --
68. DEFENDANT: It is on the internet.
69. LORD JUSTICE LAWS: Please, Mrs Miles, do not interrupt me -- that a list is kept, and if a vexatious litigant seeks to issue proceedings in the office here, they will simply be turned away.
70. MR THOMAS: If that is the case --
71. LORD JUSTICE LAWS: I am not sure, I think it is the case.
72. MR THOMAS: To the extent that that is the case, no breach of the order will arise. The only circumstances in which the penal notice and any application for contempt proceedings could be brought into effect would be if that system failed and Mr and Mrs Miles sought to issue proceedings without seeking the leave of the court. So say, for example, they went to the county court and managed to issue county court proceedings in breach of your Lordship's order, that is action in the context of their previous behaviour and in the context of this order which properly merits an application for contempt of court.
73. LORD JUSTICE LAWS: Then have a contempt of court hearing in which all of these matters would be argued all over again.
74. DEFENDANT: That is so unfair. We are not of that description, my Lord. I am not underhand in any way. That is deeply offensive.
75. LORD JUSTICE LAWS: Very well. Anything else, Mr Thomas?
76. MR THOMAS: All I am instructed to say is that the Attorney General has experience of vexatious litigants seeking to issue proceedings in contravention of the order.
77. LORD JUSTICE LAWS: I suppose if either Mr or Mrs Miles did seek to act in contravention of the order, there being no penal notice, it would be open to the Attorney General to apply to amend the order for the future to add a penal notice in the light of that experience.
78. MR THOMAS: My Lord, if there were liberty to apply, then I would be content with that course.
79. LORD JUSTICE LAWS: That might be the best course.
80. MR JUSTICE MITTING: In their own wrong-headed way they have sought to stay within the law, and there is at the moment no reason to believe that they will disobey an order of this court.
81. MR THOMAS: My Lord, I am certainly not submitting to you that they have a history of breaching court orders. I could not possibly make that submission, and I certainly do not wish to suggest that.
82. LORD JUSTICE LAWS: With respect, I think there is much force in what my Lord has said. Mrs Miles, we do not intend to include a penal notice. We will give the Attorney General liberty to apply. That means that, if in light of some future event, he thinks there should be such a notice added to the order, he can come and ask for one, but it does not mean that he will necessarily get it. Do you understand?
83. DEFENDANT: I understand that. I will be seeking permission to appeal. I ask for the return of the files.
84. LORD JUSTICE LAWS: Return of your files, you can certainly have. But before we come to that, subject to my Lord, we will make the order in the form sought, save for the omission of the penal notice at sub-clause (4), and the addition of a liberty to apply to the Attorney General.
85. DEFENDANT: I understand that. What I would like to clarify is the proceedings we have commenced already, which are awaiting --
86. LORD JUSTICE LAWS: You may not continue them.
87. DEFENDANT: They are dead as well?
88. LORD JUSTICE LAWS: You may not institute or continue any civil proceedings without the leave of a High Court Judge.
89. DEFENDANT: So I can now apply to a High Court Judge with respect to the CPS's discontinuation decision?
90. LORD JUSTICE LAWS: I have said what I have said, Mrs Miles, I think the position is clear.
91. DEFENDANT: But just to understand that it is not cut-off completely from the court? One can apply to the court for permission?
92. LORD JUSTICE LAWS: The statute allows for that, yes. It is in section 42 itself. I forget which sub-section.
93. DEFENDANT: I just wished to clarify that.
94. LORD JUSTICE LAWS: You are seeking permission to appeal?
95. DEFENDANT: Yes, my Lord.
96. LORD JUSTICE LAWS: No, we decline to grant permission to appeal.
97. DEFENDANT: So do I actually have to ask for permission to ask for permission to appeal or can I do so?
98. LORD JUSTICE LAWS: You must take advice, Mrs Miles.
99. DEFENDANT: I cannot afford advice, my Lord.
100. DEFENDANT 2: According to the book, we can take it to the House of Lords.
101. LORD JUSTICE LAWS: There you are then.
102. DEFENDANT: So we can issue an appellant's notice without permission of the High Court?
103. LORD JUSTICE LAWS: Mr Thomas, I have had this before, and I cannot remember how it was resolved. What happens if a respondent in these circumstances, having been refused permission to appeal by this court, issues a notice of appeal to the Court of Appeal?
104. MR THOMAS: My Lord, my understanding is that they can issue an application notice for seeking permission to appeal from the Appeal Court.
105. LORD JUSTICE LAWS: There you are, Mrs Miles. Mr Thomas is not giving you formal advice no more than I, but that is his understanding of the matter.
106. DEFENDANT: Thank you very much. Please may we have a copy of the judgment at public expense?
107. LORD JUSTICE LAWS: Yes.
108. DEFENDANT: And I understand the ruling was made to the effect that the proceedings we have commenced were not only vexatious, but repetitious. Although, my Lord did not regard --
109. LORD JUSTICE LAWS: Mrs Miles, you will get a copy of the judgment of my Lord and my short agreement with it at public expense. That, I think, makes all matters clear.
110. DEFENDANT: Thank you.