The practicalities and limitations of legislation dealing with vexatious litigants

In our post Challenges to school admissions criteria and “vexatious litigation” we commented on the inaccurate use of the word “vexatious” by the Secretary of State for Education in relation to a proposed amendment of the rules relating to the Schools Admission Code in England. We explained that S42 Senior Courts Act 1981 provided for a restriction of vexatious proceedings, whereby:

“(1) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground:

(a) instituted vexatious civil proceedings, whether in the High Court or the family court or any inferior court, and whether against the same person or against different persons; or

(b) made vexatious applications in any civil proceedings, whether in the High Court or the family court or any inferior court, and whether instituted by him or another, or

(c) instituted vexatious prosecutions (whether against the same person or different persons),

the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order, a criminal proceedings order or an all proceedings order.”

HM Courts & Tribunals Service has published Guidance on vexatious litigation and also a List of vexatious litigants in England and Wales, (as at 15 December 2014). The recently-published judgment Re St George Hanworth [2016] ECC Lon 1 concerns an application by the PCC for an injunction against the London Borough of Hounslow (“the Borough”) in relation to  an area of land adjacent to the church known as Rectory Court (“the site”) which is registered at HM Land Registry as being in the ownership of the Borough.

The PCC’s application is described as having “an unusual history” [4], which relates in part to the involvement of the Reverend Paul Williamson (“Fr Williamson”); at the case management hearing, both the Court and the Borough took the point that by a Civil Proceedings Order made against Fr Williamson on 16 July 1997 he had been declared a vexatious litigant, [R v HM Attorney-General ex parte Reverend Paul Stewart Williamson [1997] EWHC Admin 691]. As a consequence, the proceedings were stayed to enable him to apply to the High Court for leave to bring the application [8].

At the High Court his application was refused  by Mrs Justice Patterson; she observed that Fr Williamson’s status as a declared vexatious litigant did not prevent him from giving evidence in Court proceedings initiated by others, However she also commented negatively on the merits of the application itself [9]. Nevertheless, subsequent representations were made to the Diocesan Registry to the effect that, without apparently seeking independent legal advice, the PCC believed that Fr Williamson had a legitimate case and wished to see the application proceed [10].

With some reluctance Chancellor Seed gave leave for the application to proceed on the basis that it would be treated as an application by the PCC and not by Fr Williamson, thereby complying with the Order of Mrs Justice Patterson; he directed that Fr Williamson was not to participate in the proceedings, except that he would be permitted to give evidence if necessary [11]. However, although the PCC’s case was presented by one of the churchwardens, Mrs Janet Tewkesbury, “she was subject to frequent prompting and intervention from Fr Williamson. It was evident [to the Chancellor] that Fr Williamson had conduct of the proceedings …” [15].

The PCC’s case was that it was seeking: a decision as to the consecrated status of the site as well as its continued ownership by the benefice; an injunction against the Borough restraining it from undertaking building works on the site; and an order for compensation going back “some 50 years” [16]. However, on behalf of the PCC, Mrs Tewkesbury “was in some difficulty because … she was completely unable to adduce any compelling evidence that the site had been one part of a consecrated churchyard and was still consecrated [15]. No evidence was produced as to its consecration or in relation to human remains exhumed from the site as alleged in the PCC’s statement [22].

On the other hand, the Borough was in a stronger position: its statutory predecessor had been the absolute owner of the site since 1946; planning permission had been obtained, a demolition contract let, and a construction contract was pending. The Chancellor’s reading of the statements of the case and the annexed plans supported the position of the boundary of the site with the church land as shown on the Land Registry plans. Furthermore it was pointed out by Counsel for the Borough that if prevented from proceeding because of action by the PCC, the potential cost liability on the part of the PCC could be substantial [20].

Whilst “a key part of the PCC’s argument was the prime facie inalienability of consecrated land”, the Chancellor observed that this was inconsistent with unauthorized action by Fr Williamson taken in relation to other land within the churches curtilage [25 to 27]. Although not directly affecting the site vested in the Borough, “it is seriously damaging to the PCC’s already weak case. It may also be a disciplinary matter” [28].

On the basis of the evidence before him and the submissions of the parties, the Chancellor dismissed the application. He further observed that “the application appeared to be an opportunistic and unjustified attempt to extract money from the Borough” [29].