Law Report: Order against litigant affects partners: Mephistopheles Debt Collection Service (a firm) v Lotay: Court of Appeal (Lord Justice Nourse and Mr Justice Wall) - 6 May 1994

Paul Magrath,Barrister
Tuesday 31 May 1994 23:02

An application made in civil proceedings by two or more partners, against one of whom a civil proceedings order was in force, was an application 'made by him' for the purposes of section 42(1A) of the Supreme Court Act 1981 (Restriction of Vexatious Legal Proceedings) as amended, and therefore required the leave of the High Court.

The Court of Appeal allowed an appeal by the defendant, Gurdip Kaur Lotay, reversed the decision of Judge Platt sitting in Edmonton County Court on 10 June 1993, and restored the decision of District Judge Rose on 6 April 1993, staying proceedings against Mrs Lotay.

The proceedings were begun by David James Butler, trading as Butler the Builder, who sued Mrs Lotay over unpaid bills. He then assigned his debt to the four partners of the Mephistopheles Debt Collection Service, whose name was perhaps explained by a legend at the foot of their printed stationery: 'It's no use dying to avoid us - we pursue debtors to the gates of Hell if necessary in order to recover our clients' money]'

The four partners were: Roger Charles Gleaves, his two sons Floyd and Graeme, and Terence Patrick Ewing. But when Mr Butler applied to substitute them as plaintiffs, the district judge refused because he knew there was a civil proceedings order in force against Mr Ewing.

Mr Ewing then assigned his share in the partnership to Roger Gleaves. The district judge, having been led to believe the problem was resolved, then substituted the other three partners as plaintiffs.

However, Mr Butler's affidavit verifying the material facts failed to mention that there was also a civil proceedings order in force against Roger Gleaves. When the district judge found out, he stayed the action. The plaintiffs' appeal was then argued by Graeme Gleaves.

Section 42(1) of the 1981 Act (as amended by section 24 of the Prosecution of Offences Act 1985) empowers the High Court to make a 'civil proceedings order' against a vexatious litigant, which by section 42(1A) means: '(c) no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court.'

Peter Oldham (TV Edwards, Stepney) for the defendant; Graeme Gleaves in person.

LORD JUSTICE NOURSE said it was clear, both in principle and on authority, that an application could not be made by two of three plaintiffs without its being made by the third as well: see Re Wright (1895) 2 Ch 747.

It followed that, notwithstanding the form of the notice of appeal and that it was argued by Graeme Gleaves, it could only have been brought, and was indeed brought, by all three partners. It was therefore an application made by Roger Gleaves within para (c) of section 42(1A). The fact that the application was also made by two others did not prevent it being made by Roger Gleaves. The same would be true of any other application made by or on behalf of the plaintiffs in the action as presently constituted.

MR JUSTICE WALL concurred. A person who was subject to a civil proceedings order had, by definition, so abused the system that the proper administration of justice required that he or she must seek the permission of the High Court before being allowed to institute, continue or make applications in, civil proceedings. It could not be in the interests of justice that a person subject to a civil proceedings order should be able to avoid the effect of the prohibition contained in section 42(1A) simply by forming or joining a limited partnership and using it as a device to carry on vexatious litigation.

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