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Law - Paragon v Noueirie 2001
Case Nos: B2/2001/1063A, 1395 and 1468
Neutral Citation Number: [2001] EWCA Civ 1402
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 19th September 2001
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE TUCKEY
and
LORD JUSTICE LAWS
- - - - - - - - - - - - - - - - - - - - -
PARAGON FINANCE PLC Applicant/
Appellant
- and -
RICHARD HELAL NOUEIRI Respondents
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Philip Engleman and Paul Spencer (instructed
by the Bar Pro Bono Unit for the RCJ Citizens' Advice Bureau)
Jeremy Morgan (instructed by the Treasury Solicitor
as friend of the court)
Mr Anthony Alexander appeared in person
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
Summary
(This summary does not form part of the judgment)
In this judgment the Court of Appeal has given
its reasons for making an order banning Mr Alexander from
taking any steps whatever within the Royal Courts of Justice
by way of acting or purporting to act on behalf of persons
other than himself in legal proceedings except with the permission
of a judge of the High Court or the Court of Appeal. The court
also gave guidance about the activities of unqualified people
who from time to time seek to help litigants in person in
the courts. This "help" may take the form of acting
as an advocate in court on their behalf or of conducting litigation
on their behalf. The exercise of both these rights is now
controlled by the Courts and Legal Services Act 1990.
Advocacy services and rights of audience
The existence or otherwise of a right of audience is now determined
exclusively by Part II of the Courts and Legal Services Act
1990 ("the 1990 Act" ) and particularly by section
27. If the "helper" is not a barrister or a solicitor
or a member of any other authorised body, and does not have
rights granted by some statute, he may only have a right of
audience in relation to any proceedings if "granted by
that court in relation to those proceedings".
Lord Woolf, when Master of the Rolls, has said that the discretion
to grant rights of audience to individuals who did not meet
the stringent requirements of the Act should only be exercised
in exceptional circumstances. He added that the courts should
pause long before granting rights to individuals who made
a practice of seeking to represent otherwise unrepresented
litigants.
McKenzie friends
Although this case was not concerned with McKenzie friends,
the court also set out three principles relating to McKenzie
friends. The first is that a McKenzie friend has no right
to act as such: the only right is that of the litigant to
have reasonable assistance. The second is that a McKenzie
friend is not entitled to address the court. If he does so,
he becomes an advocate and requires the grant of a right of
audience. The third is that as a general rule a litigant in
person who wishes to have a McKenzie friend should be allowed
to do so, unless the judge is satisfied that fairness and
the interests of justice do not so require. However, the court
can prevent a McKenzie friend from continuing to act in that
capacity where the assistance he gives impedes the efficient
administration of justice.
The right to conduct litigation
The question whether a person has a right to conduct litigation
is also determined solely in accordance with Part II of the
1990 Act. The 'right to conduct litigation' means the right
to issue proceedings before any court, and the right to perform
any ancillary functions in relation to proceedings (such as
filing acknowledgements of service). The right to conduct
litigation may be granted having regard to the same considerations
as the grant of the right of audience. A court has the power
to grant an otherwise unqualified person a right to conduct
litigation in relation to particular proceedings. It also
has the power to remove that right if it is being abused.
It is a criminal offence and also a contempt of the court
concerned to do any act in the purported exercise of a right
to conduct litigation when none has been conferred.
The Solicitors Act
The court also referred to section 20(1) of the Solicitors
Act 1974. This section provides that "no unqualified
person shall act as a solicitor, or as such issue any writ
or process, or commence, prosecute or defend any action, suit
or other proceeding, in his own name or in the name of any
other person, in any court of civil or criminal jurisdiction".
The section creates a criminal offence and also a contempt
of the court in which the relevant action is brought. There
is no breach and no contempt if the acts in question are carried
out pursuant to a right of audience or a right to conduct
litigation granted under the 1990 Act. In its judgment the
court explains how the words "acts as a solicitor"
have been interpreted in the past.
Publicity for these principles
The Court expressed the wish that steps might be taken to
bring these principles to the attention of everyone who exercises
judicial office in the Royal Courts of Justice and every relevant
member of court staff. It said that court staff should be
particularly vigilant to ensure that formal documents, such
as an appellant's notice, should be signed either by the appellant
himself or by someone, such as a solicitor, who has the legal
right to conduct litigation on the appellant's behalf. The
court also expressed the hope that the appropriate authorities
in the Supreme Court Group and the Civil Appeal Office might
set up administrative systems to assist judges to identify
those lay representatives who are not simply helping a friend
or relation but are holding themselves out to act for others
on a regular basis.
LORD JUSTICE BROOKE : This is the judgment of the court.
In this matter another division of this court (Robert Walker
and Tuckey LJJ) on 4th July 2001 dismissed three applications
by Mr Noueiri. At the end of his judgment Robert Walker LJ,
with whom Tuckey LJ agreed, made certain comments about the
position of Mr Anthony Alexander in the litigation. The court
had permitted Mr Alexander to address it in the capacity of
Mr Noueiri's lay representative, and in his judgment Robert
Walker LJ explained why there seemed to him to be grave doubt
as to whether Mr Alexander was a proper person to be allowed
to act as a Mackenzie friend or a lay representative on behalf
of any other litigant in person.
He recognised that Mr Alexander was entitled to prepare such
submissions as he might wish to make to the court before any
order was made against him. He therefore adjourned the question
whether some order should be made, and if so in what terms.
He told Mr Alexander that he must understand that this was
a matter of concern not only to that constitution of the court
but to the Civil Appeals Office generally. He suggested that
the Attorney-General might be asked to instruct counsel to
assist the court, and we have benefited from the submissions
made to us by Mr Jeremy Morgan in that capacity. We also heard
submissions from counsel who appeared for the RCJ Advice Bureau.
Mr Alexander appeared in person.
The court's order on 4th July 2001 was formally drawn up in
these terms, so far as is material:
"…
that there be a hearing on the [26th July] 2001 to which Mr
Anthony Alexander is directed to attend where the constitution
will consider the question as to what order should be made
in order to restrict Mr Anthony Alexander's activities in
completing application forms on behalf of litigants, preparing
papers for litigants and representing litigants in court."
The anxieties expressed by the court on 4th July 2001 came
to the attention of the Director of the RCJ Advice Bureau,
Joy Julien, who swore an affidavit to which she exhibited
a number of documents. She has been the director of the bureau
for nearly four years, and this is the first time she has
ever taken a step of this kind. She rationalised the bureau's
intervention by saying that the aims and principles of the
Citizens' Advice Bureau service required the bureau "to
exercise a responsible influence on the development of social
policies and services both locally and nationally". In
the light of what she said in her affidavit the bureau sought
permission to intervene in these proceedings.
Mr Alexander made a witness statement in response. He took
issue with much of what Ms Julien said in her affidavit and
sought permission to cross-examine her. In the event, Mr Engleman,
who appeared for the bureau at the hearing, decided to rely
only on Ms Julien's evidence about Mr Noueiri and a client
of the bureau called Mr Mensah, and Mr Alexander cross-examined
her on those parts of her affidavit. He said he did not wish
to cross-examine Mr Mercouris, the Bureau adviser who had
seen Mr Mensah in February 2001 and made a contemporaneous
record of that interview (which was exhibited to Ms Julien'
;s affidavit), although Mr Mercouris was available in court
to be cross-examined.
On 23rd July 2001 the RCJ Advice Bureau made a formal application
to the court that it might be joined in this matter. It sought
an order curtailing and/or limiting Mr Alexander's ability
to solicit, advise or otherwise act as a Mackenzie friend
to litigants or potential litigants within the precincts of
the Royal Courts of Justice. We granted this application at
the start of the hearing.
Three applications had been listed before the court on 4th
July. In addition to seeking a review of an order made by
Keene LJ as a single judge of the Court of Appeal on a proposed
appeal from an order of the High Court, Mr Noueiri, for whom
Mr Alexander acted as a lay representative, also sought permission
to appeal from an order made by Mr Recorder Rayner James in
the Willesden County Court. This court is a creature of statute,
and Section 15(3)(a) of the Supreme Court Act 1981 provides
that for all purposes of or incidental to the civil division
of the Court of Appeal, the Court of Appeal shall have all
the authority and jurisdiction from the court or tribunal
from which an appeal is brought (see also CPR 52.10(1) for
the powers of appeal courts generally).
In the event, our concerns were limited to Mr Alexander's
activities in the Royal Courts of Justice, so that we do not
have to consider any question relating to our jurisdiction
in a matter like this to control Mr Alexander' ;s activities
in county courts other than the county court from which the
appeal was brought.
Both Mr Engleman and Mr Morgan drew our attention to the helpful
summary on page 1761 of Volume 2 of the 2001 edition of the
White Book of the powers possessed by a superior court of
record to protect its process from abuse. It is necessary
only to refer, without express citation, to Connelly v Director
of Public Prosecutions [1964] AC 1254, 1301; Bremer Vulkan
Schiffbau und Maschinenfabrik v South India Shipping Corporation
Ltd [1981] AC 909, 971; and, for the Court of Appeal's jurisdiction
to protect its own process from abuse, Burgess v Stafford
Hotel Ltd [1990] 1 WLR 1215, 1219-20. In our judgment, this
court has ample power on this occasion to make orders restricting
Mr Alexander's activities in the Royal Courts of Justice,
both as to the business of the Court of Appeal and as to the
business of the High Court, if it is satisfied that they amount
to an interference with the proper processes of the administration
of justice. Mr Alexander, who has considerable legal knowledge,
did not argue to the contrary.
The extent of the court's inherent jurisdiction was considered
recently in Ebert v Venvil [2001] Ch 484, a case in which
this court considered whether its inherent jurisdiction to
restrain the commencement of further proceedings was ousted
by the statutory provisions in relation to vexatious litigants.
The court held that:
(i) The nature of the inherent jurisdiction of any court to
prevent its own procedure being abused was "extensive";
it was not closed; it could restrain "anticipated"
but unidentified proceedings;
(ii) The use of its inherent jurisdiction to restrict litigation
was not in conflict with Article 6 of the European Convention
for the Protection of Human Rights. (See per Lord Woolf MR,
pp 496-497). For ECHR jurisprudence on a court's right to
protect its own process, see Golder v United Kingdom [1975]
1 EHRR 524 and H v United Kingdom (Appln No 11559/85; 45 TR
281), a case in which the Commission held that it was permissible
to restrict the right of access to a court of a person who
had previously abused that right.
We will turn therefore to the facts with which
the court is concerned. Mr Alexander described himself and
his history in an application he made for a post as a CAB
worker at the RCJ Advice Bureau in January 1999. He was then
52 years old, and lived in London. He said he had qualified
as an advocate in California and had frequently appeared in
court on his own behalf and on behalf of others as a "Mackenzie
friend". The bureau did not in fact employ him. He was
made bankrupt in February 2000.
In his affidavit he described how he helped litigants who
"were obvious victims of society who seemed in genuine
need and had no other recourse but to turn to someone of goodwill
to assist them." We had the opportunity of observing
Mr Alexander when he addressed us for over an hour at the
hearing. He has immense self-confidence as an advocate. The
extent to which he gives appropriate assistance to those he
sets out to assist, or assists the court in its task of administering
justice, was the issue we had to determine.
This hearing was arranged as a result of the concerns expressed
by the court in the present case. The facts of the case were
fairly straightforward. Mr Noueiri had been granted a mortgage
loan of about £90,000 by the respondent company in 1989.
He failed to keep up his mortgage payments, and in both 1990
and 1992 possession orders were made against him in the Willesden
County Court. A warrant for possession was issued on 7th September
2000. On 26th September District Judge Steel gave directions
leading up to a hearing of an application to set aside the
warrant, which was due to be executed on 28th September. On
24th November 2000 District Judge Dabezies refused to set
aside the possession order and the warrant for possession,
and directed that Mr Noueiri should make no further application
in the matter without the permission of the court unless his
application was accompanied by a payment into court of £30,000.
On 5th January 2001 Judge Krikler dismissed Mr Noueiri's appeal
against this order. Any competent litigator advising Mr Noueiri
would then have realised that any further appeal could only
lie to this court, and because it would be a second appeal,
permission to appeal could only be given by this court. Such
permission would not be granted unless the court considered
that the appeal would raise an important point of principle
or practice, or there was some other compelling reason for
this court to hear it (CPR 52.13).
Although he did not appear before Judge Krikler on 5th January,
Mr Alexander was advising and/or acting for Mr Noueiri, and
on his advice Mr Noueiri sought permission to appeal to the
High Court. On 9th January Ouseley J was persuaded to make
an order staying the warrant, which was now due to be executed
on 10th January 2001, pending the hearing of an appeal in
the High Court on 15th January. On 15th January Hallett J
correctly struck out this notice of appeal as the High Court
had no jurisdiction in the matter. On 18th January Mr Alexander
persuaded Judge Krikler to suspend the warrant for 48 hours
to enable a notice of appeal to be lodged in this court.
On 24th April 2001 Keene LJ, sitting in court, refused permission
to appeal to the Court of Appeal, not only because he considered
that neither of the criteria for second appeals which are
set out in CPR 52.13 was satisfied, but also, on the lower
threshold test used for first appeals (CPR 52.3(6)), because
he did not consider that an appeal would have a real prospect
of success. The RCJ Advice Bureau had helped Mr Noueiri to
prepare the bundle of documents for this hearing, but in all
other respects Mr Alexander was handling the matter on his
behalf.
Any competent litigator would have advised Mr Noueiri that
this was the end of the road. Even before the reforms introduced
by CPR Part 52, section 54(6) of the Supreme Court Act 1981
provided that no appeal lay to the full court of the Court
of Appeal from the decision of a single judge on an application
for permission to appeal. Since those reforms were introduced,
a constitution of the Court of Appeal may consist of a single
judge for the purpose of exercising any of its jurisdiction
(Supreme Court Act 1981 s 54(2), as substituted by section
59 of the Access to Justice Act 1999). CPR 52.16(6)(a) expressly
provides in this context that at the request of a party, a
hearing will be held to reconsider the decision of a single
judge, but only if it was made without a hearing. These matters
are now fully set out in the judgment of Robert Walker LJ
in this case on 4th July (see [2001] EWCA 1114 at [12] –
[17]). We would add that for over 100 years no appeal has
lain to the House of Lords against a decision of this court
refusing permission to appeal (Lane v Esdaile [1891] AC 10).
Mr Alexander was very familiar with this principle.
Mr Alexander nevertheless persisted on Mr Noueiri's behalf.
On 14th May he lodged an application at the Civil Appeals
Office seeking an extension of time, permission to appeal
and a stay of execution in relation to Hallett J's order of
15th January On 1st June the county court bailiff gave Mr
Noueiri notice that he must vacate the premises before 8am
on 29th June. On 20th June Keene LJ, again sitting in court,
struck out the 14th May application pursuant to his powers
under CPR 52.9. He said it was a futile application which
had no prospect of success whatsoever. Mr Alexander appears
then to have believed, quite wrongly, that there was still
a right under the new rules to refer this decision by a single
lord justice to the full court. He therefore caused an application
to this effect to be filed at the Civil Appeals Office, and
on 25th June he persuaded Mr Recorder Rayner James, sitting
at Willesden County Court, to order a stay on the execution
of the warrant of possession for two days on an application
made without notice. Two days later, after hearing the respondents,
the same recorder declined to continue the stay and directed
that the mortgagee claimants be permitted to add to their
security costs he summarily assessed at £1,500.
We have seen a copy of the recorder's judgment on 27th June.
He said, correctly, that Mr Noueiri's pending application
to overturn Keene LJ' ;s order "has no prospect according
to the rules as the hearing of [20] June was an oral one".
He said that although the court would consider a stay of the
warrant if it was satisfied that there was some prospect of
success with regard to the appeal, the prospect of success
for Mr Noueiri was " entirely negligible".
This did not deter Mr Alexander, and on 4th July this court
heard an application for permission to appeal against Keene
LJ's order of 20th June, an application for a stay of execution
pending the hearing of the appeal, and an application for
permission to appeal against the recorder's order refusing
to extend the stay he had granted.
We have seen the three notices which initiated these applications.
They were all completed by Mr Alexander himself in manuscript.
Section 2 of Form N161 (Appellant's Notice) contains space
for "Your solicitor's name … (if you are legally
represented)" and "your solicitor's address".
On one of the forms Mr Alexander crossed out the word "
solicitor" and substituted the word "representative".
On the other he did the same, except that on one occasion
he styled himself " legal representative". He gave
a Hammersmith address from which he conducted business of
this kind as "Your representative's address". On
Form N244 (Application Notice) he again styled himself "
;legal representative".
In Section 4 of Form N161 ("Who will represent you at
the appeal hearing?"), where there were tick boxes for
"Yourself", " Solicitor" and "Counsel",
Mr Alexander deleted the word " Yourself" on the
first form and substituted "legal representative".
He did not make any entries in Section 4 of the other form.
In Section 6B Mr Alexander ticked both boxes, so that they
read, confusingly, "I do not need permission [to appeal].
I, Anthony Alexander, appellant's representative, seek permission
to appeal the order(s) at Section 5 above". Section 8
("Arguments in support of grounds") contained a
list of judgments in cases in which Mr Alexander had been
personally involved, the "Ambatielos Arbitration"
(see para 41 below) and some general references to principles
of English law or articles of international conventions. In
so far as reasons were given for the applications, they were
phrased in vague terms, such as that the "judgment was
unfair, inequitable, wrong in law and unjust."
Mr Alexander signed the statements of truth which followed
a list of " other applications" in Section 10 of
the two Forms N161 on behalf of his firm Peaceful Warrior
Ltd. On both these forms he said that this company was incorporated
in 1984. On one of them he added the words "Anthony Alexander
Ltd", which is a company name he has used in recent correspondence.
On one form he described the "position or office"
he held in the company as "in propria persona" and
on the other " Advocate (pro bono)".
The application on Form N244 for a stay of execution, on which
the Statement of Truth was completed by Mr Alexander as legal
representative, contained the following statement:
"
We wish to utilise the full remedy process, such being the
full and complete exhaustion of all and any available local
remedies, in the courts of the United Kingdom of Great Britain
and Northern Ireland, in accordance with European law, pursuant
to the Ambatielos principle, pending a hearing."
In his judgment Robert Walker LJ gave reasons for dismissing
all these applications. He said (at para 17):
"
It appears to me that all three applications before us, together
with their ancillary applications, were attempts to prolong
litigation which effectively came to an end on 24th April
last when Keene LJ refused permission to appeal from His Honour
Judge Krikler."
Robert Walker LJ then made his comments about Mr Alexander
to which we referred earlier in this judgment (see paras 1
and 2 above). He made five points in this context:
0. Mr Alexander had in the past been an experienced litigant
in person, and on 15th May 2000 another division of the court
had made a Grepe v Loam order against him (see Grepe v Loam
[1887] 37 Ch D 168);
1. He was also an undischarged bankrupt: he had told the court
he was seeking to set aside a bankruptcy order made on 24th
February 2000;
2. In spite of these matters, he had sought permission, and
had so far on a number of occasions obtained permission, to
act as a lay representative for other litigants in person;
3. On 1st December 2000, in a case called Mensah v Islington
London Borough Council, to which we will refer in paragraphs
29-31 below, Peter Gibson LJ had said that the court should
be very slow to permit Mackenzie friends to act as advocates.
Mr Alexander was appearing for Mr Mensah on that occasion;
4. Since that warning, and the subsequent Grepe v Loam order,
Mr Alexander made the misconceived and hopeless applications
which had been before the court that day.
0. It was in those circumstances that Robert Walker LJ said
that it appeared to him that there was a grave doubt as to
whether Mr Alexander was a proper person to be allowed to
act as a Mackenzie friend or lay representative on behalf
of any other litigant in person.
1. In connection with the Grepe v Loam order made against
him, Mr Alexander showed us the judgment of Judge LJ in Anthony
Alexander v Phillips Electronics Ltd [2000] EWCA CIV 893,
the case in which the order was made. Although we are not
concerned with his activities as a litigant on his own account
- and Mr Morgan, who had been nominated by the Attorney-General
to act as a friend of the court, made it clear to us that
he was making no submissions in the context of that part of
Mr Alexander's court activities - it is instructive to note
the following passages in Judge LJ's judgment:
2. "
None of the applications for permission to appeal has any
merit, and indeed they have become increasingly unreal. The
descent into fantasy was illustrated by the application [to
Owen J in February 2001] that the [defendants'] skeleton should
omit the word 'energetic'. Each of the orders currently under
consideration was fully justified. The narrative of events
provides a successful explanation for the orders, and why
there is no realistic prospect of a successful appeal against
them…
The courts from the master to the House of Lords have been
inundated with a series of applications by Mr Alexander which
have ultimately proved to be ill-founded. Time and again the
exercise has been pointless and wasteful of limited court
resources and from time to time has involved the defendants
in additional expense. Having seen Mr Alexander on a number
of occasions personally, I should record that although he
has always treated the court with proper courtesy there is
no doubt that the prospect of forensic battle holds no terrors
or concerns for him, and that indeed he relishes the cut and
thrust of the forensic process."
We will now refer to the judgments given by
Arden and Peter Gibson LJJ in the Mensah case. Mr Mensah,
who was born in 1965, commenced proceedings against two local
authorities in September 1999 claiming damages for their negligence
many years previously when he was a child in their care. He
asserted that his present unstable psychological condition
stemmed from inadequate care in his childhood. Both defendants
relied on a limitation defence which was upheld by Judge Kennedy
QC in the Lewes County Court on an appeal from District Judge
Fawcett. Mr Mensah applied for permission to make a second
appeal.
At the start of her judgment in Mensah v Islington Council
[CAT 1st December 2000] Arden LJ recorded how Mr Mensah had
felt unable to make submissions to the court, and the court
had therefore allowed Mr Alexander, his Mackenzie friend,
to make submissions on her behalf. She continued (at para
3):
"
In addition we rose for some one hour twenty minutes to enable
Mr Alexander to prepare his submissions. In giving that permission,
which was quite exceptional, speaking for myself, I was desirous
of ensuring, so far as I could, that every possible point
was put forward on behalf of Mr Mensah in his claim. I regret
to say, however, to have experienced a little disappointment
in that matter as it appeared that when the court resumed
Mr Alexander was not fully familiar with this case."
In his supporting judgment, Peter Gibson LJ said (at paras
54-58):
"
I add a few words on the unusual way that the hearing of this
application for permission has proceeded.
Mr Mensah commenced proceedings in person and earned the commendatory
remarks from His Honour Judge Kennedy QC which Arden LJ has
already cited from Mr Mensah's appearances before that judge.
Before us Mr Mensah appeared with a Mackenzie friend, Mr Alexander.
Mr Alexander had applied some time ago to this court to be
allowed to address the court on behalf of Mr Mensah. That
was refused as Mr Alexander had no right of audience. When
Mr Mensah was given the opportunity to address us today, it
soon became apparent that he was not in a position to present
his case himself and that despite this court's refusal to
allow Mr Alexander to speak for Mr Mensah, Mr Mensah was relying
on Mr Alexander to do just that. He asked that Mr Alexander
should be allowed to make submissions. We were anxious that
Mr Mensah should have a proper opportunity of dealing with
the points taken against him by the defendants. In accordance
with the overriding objective of the CPR and to avoid the
waste of today's hearing, attended, as this court had earlier
directed, by counsel for the defendants, we took the exceptional
course in this highly unsatisfactory situation of allowing
Mr Alexander to speak for Mr Mensah.
But I must make it clear that this should not
be taken as creating any precedent as to how those who have
no right of audience can act as advocates for litigants in
person. Anyone who aspires to be an advocate should obtain
the requisite qualifications, and the court should be very
slow to permit those who are allowed to be present in court
as Mackenzie friends to act as advocates. That is not the
proper function of a Mackenzie friend. The position in law
was recently restated by this court in R v Bow County Court
ex parte Pelling [1999] 1 WLR 1807. I repeat and endorse the
warning given by Lord Woolf MR at page 1825 that if a person
chooses to appear regularly as a Mackenzie friend and uses
the litigant as a mere puppet, such behaviour could provide
a firm foundation for a judge not wishing him to be present
as a Mackenzie friend.
Mr Alexander's first request to us was to ask
for an adjournment to enable an application for legal aid
to be made. But he told us that Mr Mensah had tried unsuccessfully
to obtain legal aid on four previous occasions, and there
is no reason to think that he would be more successful on
a fifth attempt. Mr Alexander then asked for an adjournment
on the basis that he had not had a proper opportunity to consider
the papers and because the skeleton argument of one of the
defendants arrived only last night and that of the other defendant
only this morning. So far as he was requesting an adjournment
to read the papers other than the skeleton, Mr Alexander has
known for some time that he could appear as a Mackenzie adviser
and he has had ample opportunity, in my view, to familiarise
himself with the documents which Mr Mensah chose to put before
this court. So far as he was requesting an adjournment to
read the skeletons provided rather late by the defendants,
it was plainly right that he should have that opportunity.
We therefore adjourned the hearing for more than an hour to
enable him to read those brief skeletons and to consider them.
Mr Alexander did not begin to grapple with the
difficulties provided by the documents referred to by my Lady,
nor with the conditions posed by the Limitation Act. Having
heard what he has had to say, I too am in no doubt, for the
reasons given by my Lady, that the appeal has no prospect
of success. Indeed, I would go further. This is an attempt
to appeal in a case where there has already been one unsuccessful
appeal to a court. Mr Mensah would have had to show that a
point of principle of practice was raised or that the case
was one which for some other compelling reason should be considered
by this court: see paragraph 2.19 of the Practice Direction
for the Court of Appeal (Civil Division). That test, in my
judgment, was plainly not satisfied."
Ms Julien explained in her affidavit how Mr
Mensah had visited the RCJ Advice Bureau in August 2000, and
obtained their help in preparing the bundle of documents required
by the Civil Appeals Office. In October he returned to the
bureau and told the staff that a "pro bono barrister"
was now acting for him on the hearing of his application that
day.
He came back to the bureau on 21st February 2001. He said
that his application had in fact been heard "on notice",
following an adjournment, on 1st December 2000. It had been
dismissed. Mr Mensah was now seeking the bureau's help with
two matters. He wanted them to help him complete papers for
a judicial review of the decision of the Court of Appeal,
and he also wanted to discuss an intended appeal to the House
of Lords. He said that his "pro bono advocate",
Mr Alexander, had advised him to take both these steps.
Mr Mercouris was the member of the bureau's staff who saw
him. He read the transcript of the Court of Appeal's judgment
which Mr Mensah had brought with him. He heard that Mr Mensah
had lost all confidence in Mr Alexander as a result of what
he saw and heard in court that day. He said he felt Mr Alexander
had mishandled his case disastrously, and during the course
of the interview he called Mr Alexander a charlatan.
Mr Mensah told Mr Mercouris a number of matters about his
dealings with Mr Alexander. He had told Mr Mensah he would
win £250,000. Although he purported to be a "pro
bono" advocate, he had said that he would expect to be
paid 20% of Mr Mensah's winnings, and specifically mentioned
the sum of £50,000. He used a variety of postal addresses,
and Mr Mensah was not precisely sure where he lived or where
his offices were. He had treated Mr Mensah condescendingly
and patronisingly, and since the hearing he had refused to
return his papers. During their most recent telephone conversations,
Mr Alexander had repeatedly sworn at him. (The bureau subsequently
retrieved Mr Mensah's papers, with some difficulty).
Although Mr Alexander had made numerous promises that he would
prepare his case, it was obvious to Mr Mensah at the hearing
that he had done nothing at all and was completely unprepared.
Mr Mensah felt he had been manipulated by Mr Alexander, and
he was frightened of him.
Mr Mensah returned to the bureau a week later. He said then
that he had been first introduced to Mr Alexander by someone
he met on a bus when travelling to the Court of Appeal for
the first hearing of his application. He said that this other
person was also consulting Mr Alexander about his case. He
added that Mr Alexander knew that he had mental health needs
connected with his depressive illness, and that he had told
him that some people who had lost their cases in the Court
of Appeal ended up being sectioned under the Mental Health
Acts.
During Mr Mensah's visits Mr Mercouris advised him that the
advice Mr Alexander was giving him was completely wrong. Any
applications, either to the High Court for judicial review,
or to the House of Lords for permission to appeal, were bound
to fail because there existed no power to entertain either
of them.
Ms Julien also showed us the correspondence which followed
Mr Mensah's visits to the bureau, and some letters or copy
letters which Mr Mensah had received in connection with this
matter. These included a letter from the Brighton and Hove
branch of "Mind" which contained the following passage:
"
Just thought I'd drop you a line to pass on a call from Anthony
Alexander that I received after you'd gone this morning.
Anthony's understanding of your situation (this might be right
or wrong) is that in order to take your case to Europe you
have to have gone through every possible legal procedure in
the UK first. This includes the House of Lords. To get to
Europe you therefore have to apply to the House of Lords even
though they will certainly turn down your application –
it's procedure you have to go through. Unfortunately an application
costs £ 570.
Anthony suggests that one way out of this is
for him to write to the Court of Appeal and ask them to waive
the application fee for the House of Lords. They will probably
say no, quoting the Lane v Esdaile case but he feels it is
worth trying. He is going to do this."
The correspondence shows that Mr Alexander was
styling himself as " Advocate (pro bono)". He added
the words "legal qualifications and credits available
upon request" in one of his letters. Mr Mensah's file
included the copy of a letter written by Mr Alexander to the
Civil Appeals Office Listing Office on 12th November 2000
seeking the court's consent to his suggestion that he should
speak on Mr Mensah's behalf as his lay representative on 1st
December. (As appears from Peter Gibson LJ's judgment, this
request was refused). It also included a letter sent by Mr
Alexander to Peter Gibson LJ personally on the evening of
1st December to the effect that he had been ritually humiliated
and that he would be making a formal complaint about the "treatment
meted out".
It appears that Mr Alexander has totally misunderstood the
effect of the rule that the ECHR institutions at Strasbourg
will not entertain a complaint unless an application has exhausted
his remedies in his national courts. He believes, quite wrongly,
that after the Court of Appeal has refused permission to appeal,
there must still be a petition for leave to appeal to the
House of Lords even though such a petition is doomed to failure.
He addressed us at some length about his belief in this regard,
as he had to other courts in the past. In one of those hearings
reference was made to a judgment of Hill J in the Admiralty
Court in The Ambatielos [1923] P 68, and Mr Alexander also
made reference to other cases which he did not produce. So
far as the European Court of Human Rights is concerned, its
judgment in De Wilde, Ooms and Versyp v Belgium (No 1) 1 EHRR
373 shows (at para 60) that under international law, the rule
of exhaustion of domestic remedies demands the use only of
such remedies as were available to the applicants and capable
of providing redress for their complaints; and that the onus
lies on a national government to indicate the remedies which
were available to them and which ought to have been used by
them until they had been exhausted. We do not suppose anyone
will ever be able to persuade Mr Alexander that his understanding
of the position is wrong. On 28th February 2001, the day of
Mr Mensah's second visit, Ms Julien wrote to a deputy master
at the Civil Appeals Office in these terms:
"
Mr Alexander continues to advise Mr Mensah (who is on benefit)
to put up £ 570 in cash to pursue an appeal to the House
of Lords. This notwithstanding the fact that Mr Alexander
has demonstrated that he is aware of Lane v Esdaile."
Ms Julien expressed to us a number of concerns about this
history. After directing us to Peter Gibson LJ's comments
on the poor quality of Mr Alexander's advocacy, she said that
if Mr Alexander had not become involved the bureau would probably
have been able to find a pro bono advocate who would have
been a qualified barrister. He would have been able to put
Mr Mensah's case cogently and effectively. Although Mr Mensah
would still have lost, his case would have been properly put.
This would not only have helped the Court of Appeal, but it
would also have ensured that Mr Mensah would have come away
from the hearing convinced that his case had been argued properly.
She added that "this would have been very important to
him and is not the case at present".
She also pointed out that the Court of Appeal had ordered
Mr Mensah to pay the costs of the hearing, even though he
was on benefit. Although it seemed unlikely that the respondent
local authorities (who were both represented by solicitors
and counsel), would seek to recover their costs, she believed
that this order might have been avoided if Mr Mensah had been
properly represented. Similarly, she thought that if Mr Noueiri
had entrusted his case to the bureau, instead of just using
it to help him to prepare a bundle of documents, her staff
would have been able to explore with him the possible housing
options that might have been available to him after his application
to the Court of Appeal was turned down.
Mr Morgan, to whom the court was indebted for his help, suggested
that on the evidence the court might in the light of the inquiry
directed by its order of 4th July (see para 3 above) consider
Mr Alexander's conduct under five separate headings:
0. The fact that he gave bad advice to those he sought to
assist. This led to a waste of court time and exposed them
to the risk of adverse costs orders. It also meant that other
litigants had to wait longer for their cases to he heard;
1. The fact that he gave this assistance to people who were
already vulnerable. (This was a matter of particular concern
to the RCJ Advice Bureau);
2. The fact that he told Mr Mensah that he expected to receive
20% of his winnings as recompense for his pro bono services;
3. The fact that he held himself out wrongly as a lay representative
competent to assist litigants in their cases;
4. The fact that although he was eloquent and articulate as
an unqualified advocate, he was also an incompetent advocate,
as the judgments of this court in the Mensah case showed.
0. In addition to the evidence given in his affidavit, Mr
Alexander's oral submissions to us contained a significant
amount of evidence, although we did not require him to go
into the witness box for this purpose. He showed us transcripts
of judgments in which members of this court, or judges in
other courts, had complimented him on his advocacy or on the
assistance he had given them. He apparently has an undesirable
practice of writing personal letters to judges after hearings
in which he has appeared as a litigant in person or as a "pro
bono advocate" or lay representative, and he showed us
some of the polite responses he had received.
1. He said that Mr Noueiri, who was present at the back of
the court, was a friend of long standing, whom he had helped
from time to time. He showed us papers relating to a judgment
in Mr Noueiri's matrimonial proceedings eight years ago. He
said that Mr Noueiri had never been a client of the RCJ Advice
Bureau. He did not respond to Ms Julien's statement that the
bureau would have been able to advise Mr Noueiri on his housing
options if he had not entrusted himself to Mr Alexander. He
said he would be willing to undertake to pay the £1,500
Mr Noueiri was ordered to pay by way of costs on 27th June.
2. He accepted that Mr Mensah was vulnerable, and he did not
challenge the bureau's account of what Mr Mensah had told
them. He suggested, however, that Mr Mensah would "most
assuredly listen to the last word which represents the most
strength and security". He said that Mr Mensah had made
derogatory remarks about the judges after the hearing on 1st
December (which he had quoted in his personal letter to Peter
Gibson LJ), and had continued to seek his advice after that
hearing.
3. He accepted that it had been a serious error of judgment
on his part to go to the High Court in January 2001 in the
Noueiri case, but this had helped his friend stay in his flat
for a little longer. He told us he possessed a book on Legal
Skills, and that he called himself an advocate although he
was not qualified to practise here. He said that he had a
good understanding of natural law, and that he simply helped
friends: Mr Mensah was the only "client" who was
not a friend.
4. When we asked him why he felt he was permitted to complete
and lodge Notices of Appeal or Application Notices at the
Civil Appeals Office he said that he was entitled to file
them as an advocate. He said that he had never taken any money
from anyone and he denied saying some of the things attributed
to him by Mr Mensah.
5. In this matter we are not directly concerned with the activities
of a Mackenzie friend or with Mr Alexander's status as a litigant
in his own right. We are concerned with his activities when
he acts or purports to act as if he was a lawyer on behalf
of other litigants. This may take the form of his acting as
an advocate in court on their behalf or of conducting litigation
on their behalf. The exercise of these rights is now controlled
by statute. Section 119(1) of the Courts and Legal Services
Act 1990 contains the following definitions:
6. "'
right of audience' means the right to appear before and address
a court including the right to call and examine witnesses;
'right to conduct litigation' means the right
(a) To issue proceedings before any court; and
(b) To perform any ancillary functions in relation to proceedings
(such as entering appearances to actions)."
Because there is still a good deal of misunderstanding
about the scope of the activities unqualified people are now
permitted to pursue in our courts when they are not concerned
with litigation in their own right, it is necessary to state
the basic ground rules as simply as possible.
Advocacy services and rights of audience
At common law nobody had a right to act as an advocate without
the leave of the court which, as part of its power to regulate
its own proceedings, had a discretion to control who addressed
it. Nevertheless by ancient usage in the superior courts barristers
and others similarly qualified could not be prevented from
acting as advocates (see the extracts from the judgments in
Collier v Hicks (1831) 2 B & Ad 663 at pp 668 and 672
cited by Lord Pearson in O'Toole v Scott [1965] AC 939, 952C-F).
The existence or otherwise of a right of audience is now determined
exclusively by Part II of the Courts and Legal Services Act
1990 ("the 1990 Act" ) and particularly by section
27. None of the general rights of audience granted by section
27(2)(a) and (b) apply to Mr Alexander. He was not a duly
qualified barrister or solicitor, and none of these proceedings
were covered by the Lay Representatives (Rights of Audience)
Order 1999, which is concerned with small claims proceedings.
In those circumstances he may only have a right of audience
in relation to any proceedings if "granted by that court
in relation to those proceedings" (see section 27(2)(c)).
Section 27(2)(a) evidences the importance Parliament attached
to the control exercised by appropriate authorised bodies
(an expression, defined in section 27(9), which includes the
Bar Council and the Law Society) which has qualifications
and rules of conduct that have been approved for the purposes
of section 27.
The decision whether to grant a right of audience in an individual
case has to be made by reference to sections 17 and 18 of
the 1990 Act: see D v S (rights of audience) [1997] 1 FLR
724, 725B-726G. In that case Lord Woolf MR said at pp 728C-729A
that the discretion to grant rights of audience to individuals
who did not meet the stringent requirements of the Act should
only be exercised in exceptional circumstances. He added that
the courts should pause long before granting rights to individuals
who made a practice of seeking to represent otherwise unrepresented
litigants.
Section 27(4) of the 1990 Act confers on the court in any
proceedings a power to refuse to hear a person with a right
of audience (for reasons which apply to him as an individual).
This power cannot extend to individuals with no right of audience.
It does not have to, since they have no right until it is
expressly conferred on them by the Act or by the court. For
the sake of completeness, we would add that it is a criminal
offence, and also a contempt of the court concerned, to do
any act in the purported exercise of a right of audience when
none has been conferred (1990 Act, s70(1) and (6)).
McKenzie friends
Although Mr Alexander did not purport to act as a Mckenzie
friend, it is worth mentioning some important principles governing
Mckenzie friends.. The development of this jurisprudence is
set out in the judgment of Otton LJ in the Divisional Court
in R v Bow County Court ex p Pelling [1999] 1 WLR 1807, 1811B-1813,
in a passage approved by the Court of Appeal at p 1826B. Three
principles are worth noting from the judgments in this case:
0. A McKenzie friend has no right to act as such: the only
right is that of the litigant to have reasonable assistance
(see p 1824G.)
1. A McKenzie friend is not entitled to address the court
(see pp l823E,1824G.) If he does so, he becomes an advocate
and requires the grant of a right of audience under section
27.
2. Generally, a litigant in person who wishes to have a McKenzie
friend should be allowed to do so unless the judge is satisfied
that fairness and the interests of justice do not so require
(see pp 1827D and 1823G). However, the court can prevent a
McKenzie friend from continuing to act as such where the assistance
given is inimical to the efficient administration of justice,
for example where the friend is indirectly running the case
or using the litigant as a puppet (see pp1823G-1824A, 1824E,
1825D-F).
0. In R v Leicester City Justices ex p Barrow [1991] 2 QB
260 Staughton LJ described the court's power to control the
activities of a McKenzie friend in these terms:
1. "
An assistant can be ordered to stay away from the litigant
or to leave the court if he is disorderly, just as any member
of the public can be removed. If he wastes time unnecessarily,
as by prompting the litigant to ask irrelevant questions,
or causing delay by long consultations, he should be warned;
and if this conduct persists his assistance should be terminated.
Courts already have, on occasion, the task of controlling
professional advocates and litigants and persons who cause
unnecessary delay …"
The right to conduct litigation
The question whether a person has a right to
conduct litigation is also determined solely in accordance
with Part II of the 1990 Act (see 28(1). The grant of the
right to conduct litigation is carried out having regard to
the same considerations as the grant of the right of audience
(see para 54 above). Section 28(2)(c) permits a court to grant
an otherwise unqualified person a right to conduct litigation
in relation to particular proceedings. Section 28 contains
no express provision for the removal of a right to conduct
litigation analogous to section 27(4), but in our judgment
the power under section 28(2)(c) to grant a person a right
to conduct litigation in an individual case must necessarily
carry with it an implied power to remove that right if it
is being abused. It is a criminal offence and also a contempt
of the court concerned to do any act in the purported exercise
of a right to conduct litigation when none has been conferred
(1990 Act, s 70(1) and (6)).
Section 20(1) of the Solicitors Act 1974
For the sake of completeness it is worth referring also to
section 20(1) of the Solicitors Act 1974 whose provisions
seem to have been overlooked by Mr Alexander. This section
provides that:
"
No unqualified person shall act as a solicitor, or as such
issue any writ or process, or commence, prosecute or defend
any action, suit or other proceeding, in his own name or in
the name of any other person, in any court of civil or criminal
jurisdiction".
The section creates a criminal offence and also a contempt
of the court in which the relevant action etc is brought (see
s 20(2)). There is no breach and no contempt if the acts in
question are carried out pursuant to a right of audience or
a right to conduct litigation granted under the 1990 Act (ss
27(10) and 28(6)).
Acts which have been held to constitute breaches of section
20(1) of the 1974 Act or its predecessors have included completing
a form for the entry of an appearance, getting the litigant
to sign it, and lodging it with the court and copying it to
the other side (see re Hall (1893) 69 LT(NS) 385, where the
respondent was charging a fee for his services); and completing
and having signed by the litigant a notice of appearance,
a notice to produce documents, a summons and an affidavit,
and appearing at chambers hearings before a master and a judge
(see Re Berriman [1896] 40 SJ 377). On the other side of the
line is paying a court fee for a litigant in person (see In
the matter of an application by the Incorporated Law Society
[1885] 1 TLR 354); and representing a party at an arbitration
(see Piper Double Glazing v DC Contracts [1994] 1 All ER 177,
183j -184b, 186d-h).
Human Rights Act 1998
The Court is of course bound to consider whether any order
it makes would contravene the rights of any person under the
European Convention on Human Rights. Mr Alexander did not
make any specific submissions in this regard, but Mr Morgan
helpfully drew our attention to various provisions of the
Convention we should take into account. For the purposes of
this judgment it is necessary only to refer to Articles 6
and 8. So far as Article 6 is concerned, we do not consider
that Mr Alexander has any civil rights and obligations in
this matter with which the court need be concerned, and in
any event we have given him a fair hearing before we considered
whether his activities should be restrained. Albert &
Le Compte v Belgium [1983] 5 EHRR 533, was a case concerned
with the deprivation of a doctor's right to practise medicine.
There is a vast difference between the right to earn one's
living by practising a profession and Mr. Alexander's activities,
for which he has none of the necessary qualifications, particularly
when he was at pains to assert that he does not earn any money
from them.
Article 8 is theoretically engaged, because "private
life" has been held to extend to "the right to establish
and develop relationships with other human beings" (Niemitz
v Germany [1992] 16 EHRR 97, para 29). We have no doubt, however,
that it is open to us to restrict Mr Alexander's activities
in the way suggested "for the protection of the rights
and freedoms of others".
The other people whose Convention rights might be affected
are those who might want Mr. Alexander to help them in future.
The relevant Convention right for them is Article 6(1). However,
even the Article 6(2) right in criminal cases to legal representation
has been held by the European Court of Human Rights not to
preclude reasonable restrictions on the right of an accused
to the counsel of his choice: see Croissant v Germany [1992]
16 ECHR 135, para 29. A fortiori this principle applies to
Article 6(1) civil cases where the right is weaker (Airey
v Ireland [1979] 2 EHRR 305, para 26), and the Strasbourg
jurisprudence to which we have referred in paragraph 10(ii)
above shows how the court respects the right of national courts
to protect their process from abuse.
Conclusion
We will now apply the principles set out in this judgment
to the facts of the case. It is clear that Mr Alexander was
granted a specific right of audience in the Noueiri case by
District Judge Dabezies, Keene LJ (twice), Mr Recorder Rayner
James (twice) and the Court of Appeal (on 4th July). It also
appears that he was granted a specific right of audience by
Judge Krikler on 18th January (he had not been present at
the earlier hearing before that judge on 5th January). What
happened before Hallett J on 15th January is unclear. He was
also, most reluctantly, granted specific rights of audience
by the Court of Appeal in the Mensah case in the circumstances
described in paragraphs 30 and 31 above, and he has enjoyed
grants of specific rights of audience by different judges
from time to time in the past.
There seems to be fairly widespread ignorance of the general
guidance given by Lord Woolf MR in D v S (rights of audience)
[1997] 1 FLR 724, (see paragraph 61 above), no doubt because
his judgment was only reported in the Family Law Reports.
Peter Gibson LJ's judgment in Mensah v Islington Council (CAT
1st December 2000: see para 31 above) has gone similarly unreported.
Keene LJ said in his judgment in the Noueir i case on 24th
April ([2001] EWCA Civ 603 at [6]) that he had allowed Mr
Alexander "to speak notionally as a Mckenzie friend"
on behalf of Mr Noueiri. In the county court he was described
as a "lay representative".
It is clear that we must repeat in this judgment the guidance
given by Lord Woolf MR in D v S at p 728 C-G:
"
[The 1990] Act does give a discretion [to grant advocacy rights].
In my view, it is quite clear from the terms in which the
Act as a whole is written that it is giving a discretion which
is to be exercised only in exceptional circumstances …
[The grant of advocacy rights in specific cases] is the responsibility
of the courts who have been given that responsibility by Parliament.
Those who have rights of audience are subject to very stringent
requirements…. The law must be administered fairly.
If the position was otherwise than I have indicated, others
can do exactly the same as [X] and that would be monstrously
inappropriate having regard to the requirements that are place
upon those who have normal rights of audience."
Attention must also be paid to what Peter Gibson LJ said in
the same context in the Mensah case (see para 31 above).
We are satisfied on the evidence that Mr Alexander has not
only succeeded in practising advocacy as an unqualified person
in the Royal Courts of Justice in a way which Parliament never
intended, but that it is overwhelmingly in the public interest
that this practice must be stopped. It is clear that the members
of this court in the Mensah case regarded him as incompetent.
In the Noueiri case he repeatedly took hopeless points and
advanced completely futile arguments.
In the absence of Mr Mensah we are not disposed to find to
the requisite standard of proof that Mr Alexander made a contingency
fee agreement of the type suggested in the evidence, but the
suggestion that he might have done is another indication of
the importance of the courts adopting a tough line with unqualified
persons who offer their services as lay advocates in the higher
courts without the disciplines entailed by membership of an
appropriate professional body.
We are also satisfied that the evidence points strongly to
the conclusion that in the Noueiri case Mr Alexander conducted
litigation without a specific grant of the right to do so.
Since he was not charged with any contravention of section
28 of the Courts and Legal Services Act 1990 or section 20(1)
of the Solicitors Act 1990, and this is not the appropriate
forum for such charges, it is not appropriate to make specific
findings in this regard. It is, however, appropriate to conclude
that what he did in that case discloses what a menace he represents
to the proper administration of justice. Although an appeal
to Judge Krikler's order would be a second appeal, with all
the difficulties that involves for a would-be appellant, Mr
Alexander first went quite wrongly to the High Court and then
persisted in a number of completely futile challenges for
two and a half months even after Keene LJ had dismissed that
application for permission to appeal.
From his conduct of this litigation two conclusions are possible.
Either he did not understand procedural rules which are now
very well understood by competent litigators or he preferred
to turn a blind eye to them (or both). In either event it
is in the public interest that his activities should be stopped.
The rules to which we have referred include the following:
0. That a second appeal from a circuit judge in the county
court lies only to the Court of Appeal, and only that court
can grant permission to appeal;
1. That there is a higher threshold test for second appeals;
2. That the decision of a single lord justice in court on
an application for permission to appeal has been final both
before and after the introduction of CPR Part 52;
3. That if a High Court judge correctly refuses to grant permission
for a second appeal because she has no jurisdiction, and the
Court of Appeal subsequently refuses permission, it is improper
to buy further time by filing an Appeal Notice in the Civil
Appeal Office challenging the High Court judge's order ;
4. That if the Court of Appeal refuses a litigant permission
to appeal to the Court of Appeal, then the litigant's remedies
in the national courts are exhausted. It is both unnecessary
and futile to petition the House of Lords for permission to
appeal, because the House of Lords has no jurisdiction to
grant such permission.
0. At the hearing before us Mr Alexander appeared to be proud
of the fact that he had succeeded in staving off the execution
of the warrant of possession for his friend Mr Noueiri by
this series of hopeless applications, however much this may
have cost the respondents (who were unable to recover possession
from a mortgagor with very large mortgage arrears) or delayed
the cases of other more deserving litigants. This is another
illustration of the dangers to the administration of justice
if unqualified persons, who are not subject to any professional
discipline, act as Mr Alexander did in this case. The dangers
are increased if these lay representatives are bankrupt, so
that the courts have no realistic power to order them to pay
any costs they have wasted through futilely prolonging the
litigation.
1. It was for these reasons that at the end of the hearing
we made an order restraining Mr Alexander and any company
owned or controlled by him, including the company variously
known as Peaceful Warrior Ltd and Anthony Alexander Ltd, from
taking any step whatever within the Royal Courts of Justice,
whether in the face of any court or otherwise, by acting or
purporting to act on behalf of any person other than himself
in any legal proceedings or intended or prospective legal
proceedings save with the leave of the High Court or the Court
of Appeal, such leave to be applied for and dealt with in
writing. That order was made on an interim basis pending the
delivery of judgment. It will now be made permanent. As we
said in court at the end of the hearing, we are making the
order to protect the court process of the Royal Courts of
Justice.
2. We hope that steps can now be taken to bring the principles
set out in this judgment to the attention of everyone who
exercises judicial office in the Royal Courts of Justice and
every relevant member of court staff, particularly in the
Civil Appeals Office and in the Administrative Court office,
where unqualified persons have from time to time conducted
litigation or provided advocacy services for other litigants
in the past. Court staff should be particularly vigilant to
ensure that formal documents such as an appellant' ;s notice
should be signed either by the appellant himself or by someone,
such as a solicitor, who has unquestionably the legal right
to conduct litigation on the appellant's behalf.
3. It would also be helpful if the appropriate authorities
in the Supreme Court Group and the Civil Appeals Office could
set up administrative systems to assist judges to identify
those lay representatives who are not simply helping a friend
or relation but are holding themselves out to act for others
on a regular basis. In this way it will be possible for applications
for rights of audience or the right to conduct litigation
on specific occasions (pursuant to sections 27(2)(c) and 28(2)(c)
of the 1990 Act) to be handled more effectively in future,
so that litigants, and particularly vulnerable litigants like
Mr Mensah, who need help can be channelled to the RCJ Advice
Bureau or the Bar Pro Bono Unit and away from unqualified
people who have not received the training and are not subject
to the disciplines required by Parliament of those who provide
such services.
Order: Order as per judgment; the court makes permanent the
order which it made on a temporary basis on 26th July 2001;
application by Mr Alexander for permission to appeal to the
House of Lords refused.
(Order not part of the approved Judgment)
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