Wednesday Law Report: 28 April 1999 - Jurisdiction to prevent anticipated proceedings

Ebert v Birch and another: Ebert v Vanvil and another Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Otton and Lord Justice Aldous) 30 March 1999
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The Independent Culture
THE HIGH Court had power under the inherent jurisdiction to make orders restraining vexatious proceedings which were anticipated but not yet initiated, not only in the High Court but also in the county court.

The Court of Appeal dismissed the appeals of Gedaljahu Ebert against orders restraining him from making further applications in certain proceedings.

The appellant had brought a series of vexatious proceedings against his trustee in bankruptcy and Mr Rolf Wolff, and against the liquidator of Europride Ltd and the Midland Bank plc. As a result, the Attorney General had, on 4 December 1998, instituted proceedings against him under section 42 of the Supreme Court Act 1981. Those proceedings were yet to be heard.

The appellant appealed against two orders of Neuberger J dated 7 July 1998 and 23 October 1998 restraining him from making further applications in the current proceedings. On the appeals the issue arose, inter alia, whether the court had jurisdiction in appropriate circumstances to make Grepe v Loam orders prohibiting new proceedings being commenced without the leave of the court and, if so, whether the orders could prohibit county court proceedings as well as High Court proceedings.

The appellant appeared in person; Paul Emerson (Carter Backer Winter) for the trustee in bankruptcy; Robert Hantusch (Teacher Stern & Selby) for Mr Wolff; Gilead Cooper (Ince & Co) for Mr Rabinowitz as intervenor; Andrew Mitchell (Eversheds) for the Midland Bank plc; Ian Burnett QC (Treasury Solicitor) as amicus curiae.

Lord Woolf MR said that, notwithstanding the statutory power in section 42 of the Supreme Court Act 1981 to make an order on the application of the Attorney General to prevent the initiation of proceedings without the leave of the High Court, the inherent jurisdiction of the court remained. It was however more restricted than the statutory power.

When approaching the question whether the inherent jurisdiction permitted the making of orders in the wider form permitted under statute, the starting point had to be the extensive nature of the inherent jurisdiction of any court to prevent its procedure being abused. There was no reason why, absent the intervention of a statute cutting down the jurisdiction, that jurisdiction should apply only in relation to existing proceedings and not to vexatious proceedings which were manifestly threatened but not yet initiated.

The court could and did grant injunctions to stay specific anticipated proceedings both in the English courts and abroad. Where the injunction was in relation to foreign proceedings, the jurisdiction was not exercised by interfering with the foreign court. Instead, the injunction was granted against an individual and was enforceable personally against that individual. The ability of the court to operate in that way when the proceedings were only anticipated was no more than an example of the court being prepared to protect an applicant from anticipated damage when that damage was sufficiently imminent and serious.

The court undoubtedly had the power to stay or strike out vexatious proceedings when they were commenced, and there was no reason in principle why it should not also, in accord with the general approach to the granting of quia timet injunctions, exercise that power to prevent the serious loss that anticipated but unidentified proceedings could cause the defendants to those proceedings.

If the court had jurisdiction to make an order in relation to proceedings anticipated but not yet intiated in the High Court, there was no doubt that the High Court had power to make such an order in relation to the county court as well. The county court would give effect to a High Court order in the same way as it would give effect to a county court order.

It would be absurd today when there was a process of merger between the High Court and the county court if it were necessary for a separate order to be made in the county court.