NG YAT CHI v. MAX SHARE LTD AND ANOTHER

Court: Chief Justice Li , Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Lord Scott of Foscote NPJ

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J U D G M E N T

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Chief Justice Li :

1.  The judgment of Mr Justice Ribeiro PJ deals comprehensively with the inherent jurisdiction of the court to make an extended order and how that jurisdiction should be properly and effectively exercised.  I am in complete agreement with his judgment.  Having regard to the importance of the subject in the proper administration of justice in our courts, I wish to make some observations on certain aspects of this jurisdiction.  These observations are intended to be and should be read as entirely consistent with what is contained in Mr Justice Ribeiro PJ’s judgment.

Abusive proceedings

2.  It is not difficult to recognise the activities of the vexatious litigant.  The person concerned will almost invariably be unrepresented and will pursue abusive proceedings which usually exhibit some of the following features.  Hopeless claims are instituted.  Totally misconceived appeals are launched.  Judgments of the court, both interlocutory and at trial and both first instance and appellate, may not be accepted.  There are likely to be attempts, often repeated, to re-litigate the same matters as have already been determined.  The materials filed will often be irrelevant, incoherent or scandalous.  When present at a hearing, some vexatious litigants are unable to conduct themselves with decorum and may hurl abuse at the opposite parties and/or the judge.

3.  Abusive proceedings are oppressive to the other parties and result in unfairness to them.  To protect themselves against such proceedings, time, effort and stress are involved and costs have to be incurred.  They may be in a weak position to cope.  Often, there may be little prospect of recovering the costs incurred.

4.  Quite apart from causing unfairness to the other parties, abusive proceedings lead to unfairness to other litigants before the courts.  Judicial resources are inevitably finite.  The time which judges and their supporting staff have is of course limited.  Where much needed resources are diverted to dealing with abusive proceedings, litigants with cases of real merit suffer as a result.  It will take a longer time for their cases to be dealt with.  Courts should concentrate their resources in dealing with meritorious cases.  Their attention should not be unnecessarily diverted to dealing with abusive proceedings.

The right of access

5.  The constitutional right of access to the courts is well established under the common law and is guaranteed by the Basic Law (Article 35).  But it would be absurd to suggest that the right of access involves a right to abuse the court’s process.  The pursuit of abusive proceedings would be an improper exercise of the right of access and may be regarded as adversely affecting the right of access of others with meritorious cases.

The prevention of abuse of process

6.  The categories of abuse of process are never closed.  In the context of the civil justice system as it evolves from time to time, there is an infinite variety of abuse that may arise.  The courts are equipped with various powers by legislation, including rules of court, to deal with abuse of process.  In addition to and in parallel with the statutory powers, there is no doubt that the courts have an inherent jurisdiction to prevent abuse of process.  The proper and effective exercise of the courts’ jurisdiction to prevent abuse, both statutory and inherent, is essential to the prevention of injustice to the other parties to the litigation in question as well as the operation of a fair and efficient judicial system.  In exercising such jurisdiction, the courts should be flexible in developing remedies which are proportionate to the abuse that has to be dealt with.

Grepe v Loam orders

7.  The courts of course have the inherent jurisdiction to deal with abusive proceedings that have already commenced.  The power to make a Grepe v Loam order is well established and is widely accepted in many jurisdictions.  Such an order relates to existing proceedings.  The party subject to the order is not allowed to make any further application in the proceedings already instituted without the leave of the court.  The order is preventive in nature and constrains future applications in existing proceedings, requiring the party concerned to obtain the court’s leave.  The justification for controlling future applications in this way is that, having regard to the party’s past conduct in making abusive applications, it is apprehended that future abusive applications may be made.

Extended orders

8.  There is no reason in principle why the inherent jurisdiction should be confined to dealing with anticipated abusive applications in existing proceedings.  In my view, there is every reason in principle why it should also extend to preventing abusive proceedings which have not been commenced but are anticipated.  See Ebert v Venvil [2000] Ch 484 at 496F – 497D (Lord Woolf).  I agree with Mr Justice Ribeiro PJ that for the reasons explained in his judgment, the courts have the inherent jurisdiction to make an extended order.  Just as the court can protect itself against anticipated abuse by making a preventive order directed at future applications in existing proceedings, so it can similarly protect itself by making a preventive order directed at abusive proceedings that may be instituted in the future.  The justification is that in view of the past conduct of the party concerned, it is apprehended that that party may commence fresh proceedings which may be abusive.  The extended order does not bar the institution of any new proceedings.  Its scope is limited to constraining new proceedings which may be abusive.

9.  In his able submissions as an amicus, Mr Bernard Man advanced the arguments referred to by Mr Justice Ribeiro PJ as the statutory displacement argument and the constitutional right argument in support of the contention that there is no inherent jurisdiction to make an extended order and that the making of such an order requires statutory authority.  As to the latter argument, once it is understood that the constitutional right of access to the courts plainly cannot involve a right to abuse the court’s process, that argument must be rejected.

10.  The question arising in relation to the statutory displacement argument is whether the suggested inherent jurisdiction to make an extended order has been abrogated by implication by s.27 of the High Court Ordinance, Cap 4.  Under this provision, on an application by the Secretary for Justice and upon being satisfied of the prescribed criteria, the court may make an order prohibiting any new proceedings without leave.  Such an order is a blanket order prohibiting all new proceedings in the absence of leave.  The smaller the difference between the statutory jurisdiction and the inherent jurisdiction contended for, the stronger is the argument of implied abrogation.  Here, having regard to the material differences between the statutory jurisdiction to make a blanket order and the inherent jurisdiction to make an extended order, including the differences between the two kinds of order, the statutory provision has not ousted the court’s inherent jurisdiction in this regard.

Prohibited class of proceedings

11.  The focus of an extended order is on a defined class of proceedings which is prohibited without leave.  The class should be defined with clarity.  Its permissible scope is laid down in Mr Justice Ribeiro PJ’s judgment.  That being its focus, an extended order is capable of protecting persons who were not parties to the original proceedings in which the extended order was made.  If after the order was made, fresh proceedings are instituted against such persons, they would be protected by the extended order if the proceedings fall within the defined class.

Prevention of further abuse

12.  A Grepe v Loam order and an extended order are intended to prevent further abuse of process.  It would be unfortunate if the orders, particularly the requirement for leave thereunder, give rise to yet further abuse.  It is important that arrangements are put in place as part of the court system to prevent this from occurring, such as the issue of an appropriate practice direction and effective use of the courts’ information technology system.  At the same time, it is essential that in individual cases, orders are formulated with appropriate supporting directions to ensure that the orders can be effectively implemented and that the opportunity for further abuse is minimised.

Requirement for leave

13.  The requirement for leave is of course a central feature of an extended order, as it is for a Grepe v Loam order.  It is a mechanism to prevent further abuse as well as a safeguard to ensure that meritorious claims are not shut out.  In relation to an extended order, the leave requirement would be dealt with as follows :

(1) Where leave is sought, the first question for the court to determine is whether the new proceeding is within the prohibited class of proceedings specified in the order.  In considering this question, the court should look at the substance of the matter.

(2) Where the court concludes that the new proceeding is not within the specified class, it directs that leave is not required, allowing the proceeding to be issued.  An extended order does not envisage the court scrutinizing a new proceeding outside the class to decide whether it is arguably meritorious.  The defendant could of course take such steps as is considered appropriate after the institution of the new proceeding, such as applying to strike it out.

(3) Where the court concludes that the new proceeding is within the specified class, the court should proceed to consider whether it is arguably meritorious, that is, whether there is a reasonably arguable case.

The above comments relate to an extended order.  In relation to a Grepe v Loam order, all new applications in the existing proceedings are prohibited without leave.  Where leave is applied for, the court should consider whether the application is a reasonably arguable one.

Levels of court and the making of orders

Grepe v Loam orders

14.  A court in which proceedings were instituted may obviously make a Grepe v Loam order in relation to new applications in that court in those proceedings.  Thus, the Court of Appeal, the Court of First Instance and the District Court may make a Grepe v Loam order to prohibit new applications without leave at their respective levels.  Further, the Court of Appeal may make a Grepe v Loam order to prohibit not only new applications before the Court of Appeal but also new applications in the first instance court in which the proceedings were originally commenced, that is, the Court of First Instance or the District Court, as the case may be.

Extended orders

15.  As to the making of an extended order, the Court of Appeal may make such an order to prohibit the institution of new proceedings of the specified class both in the Court of First Instance and the District Court.  The Court of First Instance may make such an extended order to prohibit not only the institution of new proceedings in that court but also in the District Court.  And the District Court may of course make an extended order in relation to new proceedings in that court.

Procedural fairness

16.  In exercising the inherent jurisdiction to make a Grepe v Loam order or an extended order, it goes without saying that procedural fairness must be observed.  The party concerned should be put on notice and be given the opportunity to be heard before an order is made.

Exercise of the jurisdiction

17.  Grepe v Loam orders and extended orders would usually be made on the application of a party.  But there may be circumstances where it may be appropriate for the court to act on its own motion.  In acting on its own motion, the court would initiate the process by informing the parties that it is considering whether a Grepe v Loam order or an extended order should be made, indicating the possible basis of such order and giving the parties a sufficient opportunity to make submissions.  Usually an oral hearing would be held, although written submissions could be called for beforehand.  As has been noted, procedural fairness must be observed and the court should proceed with particular caution where it is acting of its own motion.

18.  The right of access to the courts must of course be strongly safeguarded.  But where the circumstances are appropriate, the courts should not be reticent in making Grepe v Loam orders and extended orders and should act firmly.  It must be emphasized that it is essential for courts to exercise their jurisdiction to prevent abuse of process properly and effectively.

Judicial review proceedings

19.  The use of Grepe v Loam orders and extended orders has been developed by the courts under the inherent jurisdiction to prevent abuse of process in the context of private law proceedings.  The case law developed so far in this area, including the present judgment, should be regarded as confined to that context.

20.  The question whether it is appropriate for Grepe v Loam ordersand extended orders to be used to prevent abuse of process in judicial review proceedings does not arise in this appeal.  That question would require careful consideration.  The important differences between private law proceedings and public law proceedings would have to be borne in mind.  The differences include the requirement that leave of the court has to be obtained for a judicial review application.  This requirement, which enables unarguable claims to be filtered out, is already a mechanism in public law proceedings for preventing abuse of process.

Section 27

21.  Section 27 of the High Court Ordinance, Cap 4, was based on s.51 of the Supreme Court of Judicature (Consolidation) Act 1925 in England.  (The position in England is now governed by s.42 of the Supreme Court Act 1981.)  Section 27 has stood in our statute book since 1975 and has not been reviewed.  There is an urgent need to reform it by widening its scope.  In particular, any person affected by vexatious conduct should have the right to apply for a statutory order without involving the Secretary for Justice.  It is for consideration that the right of the Secretary for Justice to apply should be retained as an alternative so that where the person affected is in a weak position to take action or where the public interest so requires, the Secretary could apply to seek protection for the person affected against further abuse of process.

Contempt and Injunctions

22.  Mr Justice Ribeiro PJ refers to the well established proposition that the court may in appropriate circumstances grant an injunction to restrain an anticipated interference with the administration of justice amounting to a contempt. See Attorney-General v Times Newspapers [1974] AC 273, Attorney-General v Ebert [2002] 2 All ER 789 at para. 35.  This could be relevant to abusive conduct by vexatious litigants.  Interference with court officials who are conducting their duties in the administration of justice, such as writ issuers, listing officers and process servers, may be a contempt of court.  Whether it amounts to a contempt and the seriousness of such a contempt would obviously depend on the circumstances.  See Re de Court  [1997] Times Law Reports 601.  (The transcript of the judgment is available on Lexis.)  As Lord Scott, then Vice Chancellor, pointed out in that case, the administration of justice depends not only on judges and counsel in court, but also on court officials discharging essential functions for the purpose of enabling cases to come to court.  Where a contempt of the nature being discussed is threatened, the court may grant appropriate injunctive relief to restrain future conduct.  Of course, where it has already occurred, the court may also consider the imposition of punishment for the past conduct.

23.  In Re de Court, the litigant had made over a hundred attempts at instituting ridiculous and incomprehensible legal proceedings based on documents described by the judge as gibberish.  When court officials declined to entertain them or to treat them as serious legal documents, he became angry.  He spat at a court official and this physical assault was held to be a contempt.  He had a medical condition and was regarded as a person under a disability under the rules of court.  The court did not impose any punishment but granted two orders.  As set out in the transcript of the judgment (which contains a fuller version of the orders than the Times Law Reports), the first order restrained him from bringing any action or making any claim in an action he has already brought except by a next friend who can act for him.  He was not allowed to do so in person.  The second order restrained him from entering any civil court premises save as may be necessary to answer court subpoenas.  The orders covered both the High Court and the County Court.  The court held that it had a duty to protect court officials by such orders.

24.  In Hong Kong, instances of interference by litigants with court officials who are conducting their duties in the administration of justice are unfortunately not unknown.  In future, when faced with conduct of a sufficiently serious nature, the courts should be alert to the existence of the jurisdiction to grant injunctions to restrain threatened conduct amounting to a contempt of court.  Apart from the question whether punishment should be imposed for past conduct amounting to contempt, appropriate injunctions may be most effective for preventing similar conduct in the future.

Mr Justice Bokhary PJ :

25.  I agree with the Chief Justice’s judgment and Mr Justice Ribeiro PJ’s judgment.  Access to the courts must always be carefully safeguarded.  Especially for persons to seek judicial relief against executive misuse of state power, such access being, as Lord Nicholls of Birkenhead said in Wilson v. First County Trust Ltd (No. 2) [2004] 1 AC 816 at p.835E, “one of the checks on the danger of arbitrary power”.  This appeal is not about that kind of case.  In private litigation it is the plaintiff who invokes state power, doing so by resorting to the coercive provisions of the court’s process.  A court is, as Sir Edward Coke said (in Co. Litt.58a), “a place where justice is judicially ministered”.  It is not a place for inflicting vexation or wasting the resources available to the judiciary for serving those who seek justice at its hands.  To protect others from vexation and its resources from wastage the judiciary can constitutionally curb the private litigation court access of persons who have a history of initiating such litigation vexatiously.  There is inherent jurisdiction unsuperseded by statute to do that by way of extended Grepe v Loam orders operating as explained by the Chief Justice and Mr Justice Ribeiro PJ.

Mr Justice Chan PJ :

26.  I agree with the judgment of the Chief Justice and the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ :

27.  The appellant was the plaintiff in High Court Action No 2039 of 2002 (“the Action”) which he brought against Max Share Limited (“Max Share”) and China Resources (Holdings) Company Limited (“China Resources”).  Max Share and China Resources are respectively the 1^st and 2^nd respondents to this Appeal.

28.  On 28 October 2002, Deputy High Court Judge Carlson struck out the Statement of Claim in the Action and made an order (“the subject order”) in the following terms :

“It is ordered that the Plaintiff be prohibited from commencing any further new legal proceedings in respect of the same claim or subject-matter in High Court Action No HCCW 321 of 1996 or the action herein without the leave of the Court and if notice of any such proceedings shall be given to the Defendants without such leave being obtained, the Defendants shall not be required to appear in such proceedings, which shall be dismissed without being heard.”

29.  The Judge invoked the court’s inherent jurisdiction as the basis for the subject order and adopted the wording of similar orders made in Tse Jeekeen v HK Alliance in Support of Patriotic Democratic Movement of China [2000] 2 HKC 339 (Chung J); CACV No 246 of 2000, 27 October 2000, (Wong and Woo JJA); and in Lily Ann Chan v Henry Chan, HCMP 2921 of 2001, 31 July 2001 (Kwan J).  In turn, those courts had drawn on orders deriving originally from the decision in Grepe v Loam [1887] Ch 168.

30.  The appeal from Deputy Judge Carlson to the Court of Appeal was dismissed: CACV No 306/2002, 10 September 2003 (Yeung JA, Stone and Lugar-Mawson JJ).

31.  The issue on this Appeal is as to whether the court had power to make the subject order on the basis of its inherent jurisdiction.

The events which led to the making of the subject order

32.  The relevant events commence in June 1996 with the appellant’s presentation of a petition in High Court Companies Winding-up No 321 of 1996 (“the Petition”) whereby the appellant, a minority shareholder in Max Share, made a series of complaints against China Resources (which held the majority through a nominee company).  He sought an order that Max Share be wound up on the just and equitable ground or alternatively, an order under s 168A of the Companies Ordinance, Cap 32, requiring China Resources to purchase his shares in Max Share on the ground that the affairs of that company had been conducted in a manner unfairly prejudicial to his interests as a member.

33.  The facts and arguments canvassed at the trial of the Petition are set out in the judgment of Yuen J (HCCW 321/1996, 24 May 2000) and, on appeal, that of Rogers VP (with whom the other members of the Court of Appeal agreed): see [2001] 1 HKLRD 561.  The appellant succeeded before Yuen J on a single ground.  Her Ladyship held that a large increase in the company’s share capital in May 1992 had been effected for the purpose of diluting the appellant’s shareholding in Max Share at a time when he was unable to subscribe for more shares, with a view to rendering his shares unattractive and worthless to a Mr Choy Bing Wing, who had become beneficially entitled to the appellant’s shares.  This was held to be unfairly prejudicial to the interests of the appellant as a shareholder and that the appropriate relief was for Max Share to be wound up on the just and equitable basis.

34.  In their Notice of Appeal, the respondents asserted that Yuen J had had no evidential basis for her conclusion.  They contended that the evidence established that the increase in share capital was essential for Max Share’s survival and had occurred pursuant to recommendations made by independent professional accountants in a share valuation report obtained by the parties prior to the new issue.  The Notice of Appeal continued :

“...... even if (which is denied) the purpose of the share capital increase was to dilute the Petitioner’s interest in the 1st Respondent and render his shares unattractive and worthless to Mr Choy, the learned Judge ought nevertheless to have held that ...... there could have been no or no unfair prejudice to the Petitioner, since immediately before the share capital increase the 1st Respondent’s shares were of negative value with no real prospect of recovery .....”

35.  The respondents succeeded in the Court of Appeal.  Rogers VP held that the Judge’s conclusion had been arrived at without examining the effect of the increase in capital on the underlying value of the appellant’s shares when, on the evidence (which he reviewed in detail), those shares had been valueless or of negative value so that the injection of capital could only have increased their worth.  As the share valuation report had made plain, the increase in capital was essential if Max Share was to avoid a compulsory winding-up.  Accordingly, the Judge’s conclusion regarding unfair prejudice to the appellant was factually unsustainable.

36.  The appellant sought leave from the Court of Appeal to appeal to this Court.  When that application failed, he unsuccessfully renewed his application to the Appeal Committee.  By its Determination dated 17 September 2001 (FAMV 19/2001), the Appeal Committee endorsed the approach of the Court of Appeal, holding that they were clearly entitled to substitute their finding that there had been no unfair prejudice.  No question of great general or public importance was found to arise on the proposed appeal. 

37.  By section 18 of the Hong Kong Court of Final Appeal Ordinance, Cap 484, the Appeal Committee exercises the power of the Court to determine any application for leave to appeal.  Its decision is final and not subject to appeal.  Accordingly, the Petition proceedings ought to have come to a definitive end with the Appeal Committee’s refusal of leave to appeal.  

38.  However, the appellant was not prepared to accept that result.  Between October 1991 and May 1992, he, together with Mr Choy Bing Wing and a Mr Brumen Li, sent a barrage of letters to, among others, the Chief Executive, the Chief Justice, all 60 members of the Legislative Council, the Bar Association, the Law Society, the President and Prime Minister of China, and the Prime Minister and Lord Chancellor of the United Kingdom.  In those letters, he accused the Court of Appeal and the Appeal Committee of “inventing facts”, “cheating”, “dishonesty” and “fraudulent conduct” in reversing Yuen J’s decision and refusing leave to appeal to the Court of Final Appeal. 

39.  On 29 May 2002, he issued the Writ in the Action.  The Statement of Claim repeated the allegations of fraud against the two tribunals concerned and sought, by way of relief, declarations aimed at undoing the increase in share capital of Max Share, nullifying the orders of the Court of Appeal and the Appeal Committee and restoring Yuen J’s order in the Petition proceedings.

40.  On 14 June 2002, the respondents served on the appellant a statutory demand in the sum of $1,432,994.23 in respect of part of their taxed costs in the Petition proceedings.  Simultaneously, they took out a summons to strike out the Action as frivolous, vexatious or an abuse of the court’s process on the basis that it was an unsustainable attempt at re-litigating those proceedings.

41.  The appellant applied to set aside the statutory demand contending again that the relevant tribunals had acted fraudulently so that the judgments were incapable of founding the statutory demand.  Refusal of that application by Deputy High Court Judge Woolley on 15 July 2002 led to an appeal against that decision, lodged on 23 July 2002. 

42.  In the meantime, the respondents’ striking out summons came on for hearing and, as indicated above, on 28 October 2002, Deputy High Court Judge Carlson made the striking-out and subject orders.  He held that the allegations of fraud against the two appellate tribunals were without foundation and continued :

“Stripped of its invective by the plaintiff, this is a straightforward case of res judicata. The plaintiff had applied for a winding-up of the 1st respondent.  He  succeeded at first instance, lost on appeal and the Court of Final Appeal has refused to take it further.  This must be the end of the matter.  These identical proceedings, for this is what they are, must be struck out as an abuse of the process of the court.”

43.  The Judge, in making the subject order, commented as follows :

“I was concerned that where this is the first of such actions by him, it might be going too far to suggest that there might be more to come.  I had wondered whether it might be premature to make the strong order asked for by the defendants.  But given the nature of the correspondence and the allegations to the effect that the highest courts of Hong Kong and their judges have conducted themselves fraudulently and have played fast and loose with the legal system since 1 July 1997, which it seems to me are allegations made without any pause for reasoned reflection by the plaintiff, that there is every prospect that he will seek to revisit again the issues raised in this action and in the action tried by Yuen J.  Some restraint should be applied now so that at least he has to show merit before the defendants are required to expend time and costs to defend and the wider public interest should also be addressed in the sense that the court’s time and lists should not be burdened with thoroughly unmeritorious claims.”

44.  The appellant appealed (CACV 414/2002) against Deputy Judge Carlson’s orders.  This was heard on 10 September 2003 by the Court of Appeal (Yeung JA, Stone and Lugar-Mawson JJ) simultaneously with his appeal against Deputy Judge Woolley’s refusal to set aside the statutory demand (CACV 306/2002).  The Court of Appeal unanimously dismissed both appeals, holding that the allegation of fraud was manifestly unfounded, as was an allegation that the Appeal Committee had acted ultra vires.  It held that :

“In view of the background of the case as outlined in this judgment, a Grepe v Loam order is a proper order to make in order to avoid further abuses of the process of the court.”

45.  Not satisfied with that result, the appellant applied to the Court of Appeal for leave to appeal to the Court of Final Appeal.  That application was dismissed on 28 November 2003 and, on 17 December 2003, the appellant renewed that application before the Appeal Committee.  

46.  The Registrar of the Court of Final Appeal invoked rule 7 of the Hong Kong Court of Final Appeal Rules on the basis that the application disclosed no reasonable grounds for the grant of leave to appeal and required the appellant to show cause why it should not be summarily dismissed.  Operation of that rule is discussed in Chow Shun Yung v Wei Pih (2003) 6 HKCFAR 299.  When the application was referred to it in the usual course, the Appeal Committee dismissed the application for leave to appeal except in respect of the subject order.  Leave to appeal to this Court was granted on the sole question of whether there was jurisdiction to make the subject order. 

Litigants who vexatiously abuse the process of the courts

47.  It is unfortunately the experience of the courts in many jurisdictions that problems caused by litigants who repeatedly abuse the court’s process are on the increase.  I shall refer to such litigants as “vexatious litigants”, including within such class, not merely those who have formally acquired the statutory status of vexatious litigant by order of the court (in Hong Kong, pursuant to s 27 of the High Court Ordinance, Cap 4 – “HCO, s 27”), but more generally, those who persistently engage in the abuse of the court’s process. 

48.  There are many variants of such abuse and of what motivates it.  It may represent a calculated attempt by a defendant to delay an inevitable judgment or its execution.  Or it may be a malicious campaign of harassment directed against a particular adversary.  Actions which are unintelligible or wholly frivolous may be commenced by litigants who are unfortunately mentally unbalanced.  Sometimes the vexatious conduct springs from some deeply-felt sense of grievance left unassuaged after unsuccessful litigation.  The vexatious litigant typically acts in person and characteristically refuses to accept the unfavourable result of the litigation, obstinately trying to re-open the matter without any viable legal basis.  Such conduct can become obsessive with the litigant not shrinking from making wild allegations against the court, or against the other side’s legal representatives or targeting well-known public personalities thought to be in some way blameworthy.  Numerous actions may be commenced and numerous applications issued within each action.

49.  In Attorney-General v Barker [2000] 1 FLR 759 Lord Bingham of Cornhill CJ, identified some of the features of vexatious proceedings brought in England and Wales :

“The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.” (at §19)

50.  Brooke LJ’s description of one such litigant in Bhamjee v Forsdick (No 1) [2003] EWCA Civ 799, strikes a chord which is all too familiar :

“He appeared to me to ignore the basis on which the planning inspectors and the High Court judges had held against him. He returned again and again to points which he had argued unsuccessfully on previous occasions. He was an example of a litigant who will not take no for an answer, will not consider the reasons which have been given in clear language as to why his claims have not been successful, and is willing, not only to seek to re-litigate them again and again and again, but also, to bring what, in my judgment, are completely misconceived claims for damages for negligence and other relief against the lawyers who have been instructed on the other side to resist his various appeals and applications.”  (at §17)

51.  Given the history of the present proceedings, the courts below were entitled to regard the appellant as a vexatious litigant in the sense described above.  He obstinately refused to take “No” for an answer.  When faced with a statutory demand for the respondents’ taxed costs, he sought to re-open the very issues that had led to the relevant costs orders.  He started the Action in a further attempt to re-litigate those issues.  He did not hesitate to make wholly unfounded allegations of fraud and dishonesty against the judges who had decided against him.  The scope, scale and content of his letter-writing campaign indicated the obsessive nature of his conduct and the likelihood that his efforts to re-litigate the matter would continue.  At each stage, as each of his attempts at re-opening the Petition was dismissed, he lodged an appeal, seeking each time to take the matter all the way to this Court.

52.  Such abusive activities are obviously very oppressive to the parties on the receiving end in terms of time, effort, costs and stress.  They also make grossly disproportionate demands on the judicial system for spurious purposes.  Such an unproductive diversion of limited judicial resources results in what may be damaging delays to bona fide litigants with serious actions to try.  In Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 (“Bhamjee (No 2)”), Lord Phillips of Worth Matravers MR voiced the English courts’ concerns in this context :

“......the courts are facing very serious contemporary problems created by the activities of litigants like Mr Bhamjee who are bombarding them with applications which have no merit at all. ...... The problem created by these hopeless applications is not only a serious financial one, for the reasons set out in para [25] of the judgment in Bhamjee (No 1).  It is also that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all. A further problem is created by the fact that these litigants are often without the means to pay any costs orders made against them, and the parties in whose favour such costs orders are made are disinclined to throw good money after bad by making them bankrupt, particularly as the vexatious conduct may spill over into the bankruptcy proceedings themselves.” (§3)

53.  The financial problem caused to the court system by such litigants is illustrated by Brooke LJ’s estimate, in §25 of Bhamjee (No 1) cited above, that :

“...... the true economic cost of handling each of these hopeless applications, when one takes into consideration the accommodation and staffing costs, salaries of the judges, the government lawyers, judicial assistants and the court's administrative staff, must be well over £ 1,000.”

If a similar calculation were to be undertaken in Hong Kong, the results would no doubt be at least comparable. 

The need to stop such abuse

54.  The public interest plainly requires such abuse to be stopped.   The increasing problem indicates that the measures presently available are insufficient. 

55.  Two such measures involve :

(a) the court’s power to strike out interlocutory applications as well as fresh proceedings, on the basis that such applications or proceedings are an abuse of process (“the power to strike out”); and,

(b) its power, under HCO, s 27 to make an order (“the statutory order”) prohibiting a person who is held to be a vexatious litigant from bringing anylegal proceedings against any otherperson in anycourt without the leave of the Court of First Instance, with such leave to be refused unless the court is satisfied that the proceedings are not an abuse of the process and that there is prima facie ground for them.

56.  The power to strike out is an aspect of the court’s inherent jurisdiction to prevent abuse of its process.  In Connelly v DPP [1964] AC 1254, Lord Morris of Borth-y-Gest provided a much-cited explanation of such inherent powers : 

“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction.  A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.” (at p 1301)

57.  But while an essential feature of any civil justice system, the power to strike out is not a sufficient answer to the problem of vexatious litigants.  It is a reactive power aimed at curtailing abuse.  It requires the party vexed to incur the expense and trouble of bringing a striking-out application and requires the court to entertain an inter partes hearing before such abuse can be brought to an end.  The striking-out order which results does not prevent future abuse.  The costs and inconvenience to the applicant and the absorption of judicial resources attendant on this process defines, rather than solves, the vexatious litigant problem.

58.  A statutory order is preventive and imposes a blanket requirement for the court’s leave before any proceedings can be brought by the vexatious litigant.  However, it has in practice also proved to be an inadequate response to the vexatious litigant problem.  HCO, s 27 provides :

(1) If, on an application made by the Secretary for Justice under this section, the Court of First Instance is satisfied that any person has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the Court of First Instance or in any inferior court, and whether against the same person or against different persons, the Court of First Instance may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall without the leave of the Court of First Instance be instituted by him in any court and that any proceedings instituted by him in any court before the making of the order shall not be continued by him without such leave and such leave shall not be given unless the Court of First Instance is satisfied that the proceedings are not an abuse of the process of the Court and that there is prima facie ground for the proceedings.

(2) A copy of any order made under subsection (1) shall be published in the Gazette.

59.  Statutory orders are not readily obtainable.  A party vexed by abusive conduct cannot apply for one.  Only the Secretary for Justice can apply.  This requires representations to be made by the vexed party to the Department of Justice and requires someone from that Department who is wholly unfamiliar with the background, to read into the case in order to decide whether the Secretary should make the application.  This is likely to take a comparatively long time since, like the courts, the resources of the Department are limited and heavily committed in many fields.  This gives the vexatious litigant ample opportunity to pile on the abuse.  Significantly, the Final Report on Civil Justice Reform issued by the Chief Justice’s Working Party in March 2004 (“the Final Report”) reported that between 1994 and April 2003, only two such applications were made by the Secretary (§434).

60.  Another problem with taking the statutory route involves the high threshold set for the making of a statutory order.  It must be shown that the person in question has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings.  This is so since the current legislation is evidently aimed at extreme cases of vexatious conduct, providing matching relief in the draconian form of a blanket restraining order.  An application may therefore not satisfy the statutory conditions where the vexatious conduct complained of, though damaging and calling for protective measures, is not yet of such an extreme character.  Indeed, of the two applications referred to in the Final Report, one failed to satisfy the threshold conditions.  Examples of similar failures under comparable legislation can be found in Foy v Foy (No 2) (1979) 102 DLR (3d) 342; and AG v Wentworth (1988) 14 NSWLR 481.  It is additionally to be noted that the statutory order relates only to the institution of fresh proceedings and gives no relief where the vexation relates to the unjustified issuing of numerous applications in the same action.  What this indicates is that the coverage of HCO, s 27 is too limited.  Measured intermediate responses, tailored to different variants and degrees of abuse by vexatious litigants, are needed.   

Grepe v Loam orders

61.  In Grepe v Loam [1887] Ch 168, the English Court of Appeal took steps to increase the courts’ armoury against vexatious abuse.  Having dismissed as frivolous the application of Hector Grepe and his brothers and sisters (who were acting in person) to set aside the judgments in two actions which had gone against them, and having heard that they had repeatedly made such applications without the respondents having any possibility of recovering their costs, the Court of Appeal ordered :

“That the said Applicants or any of them be not allowed to make any further applications in these actions or either of them to this Court or to the Court below without the leave of this Court being first obtained.  And if notice of any such application shall be given without such leave being obtained, the Respondents shall not be required to appear upon such application, and it shall be dismissed without being heard.”

62.  Unlike the striking-out orders discussed above, this type of order aims to prevent future abuse by requiring the vexatious litigant to obtain leave to issue any fresh application before that application needs to be noticed either by the proposed respondent or by the court.  This is a useful protective measure.  Where leave is applied for and refused, the intended respondent is spared further vexation.  Where an application is issued without leave having first been obtained, the Grepe v Loam order deems that application dismissed without being heard, avoiding further wastage of the court’s resources and vexation of the respondent. 

63.  The legal foundations of the Grepe v Loam order are not in doubt.  It is plainly a legitimate exercise of the court’s inherent jurisdiction to prevent its process being abused.  Thus, in Lord Kinnaird v Field [1905] 2 Ch 306, a case in which the defendant had made some 29 interlocutory applications and had sought to strike out the Statement of Claim on entirely frivolous grounds, the English Court of Appeal upheld a Grepe v Loam order, Vaughan Williams LJ stating (at p 309) that “no question can possibly be raised as to the jurisdiction” to make such orders.  

64.  More recently, the availability of Grepe v Loam orders was re-iterated by Lord Woolf MR in Ebert v Venvil [2000] Ch 484 at 493; and by Lord Phillips MR in Bhamjee (No 2).  In the latter case (at p 99), such orders were given the new name of “civil restraint orders”.  Other common law jurisdictions have generally accepted the validity of Grepe v Loam orders.  These include Australia: Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; New Zealand: Stewart v Auckland Transport Board [1951] NZLR 576; and Singapore:  Chua Choon Lim Robert v MN Swami [2000] 4 SLR 494.  The courts in some Canadian provinces appear to be the exception: see Shaward v Shaward (1988) 8 ACWS (3d) 412 (Manitoba); Midwest Property Management v Moore (2003) Alta DJ 16023 (Alberta).

Extended Grepe v Loam orders

65.  An important limitation of Grepe v Loam orders is that they are only directed against abuse which takes the form of repeated applications made within existing proceedings (whether before or after judgment).  They do not address abuse which involves vexatiously issuing a series of fresh actions (or other proceedings) against the same defendants or in relation to the subject-matter of the proceedings already disposed of.  One response to such abuse might be that the defendant has to resort to HCO, s 27 and try to persuade the Secretary for Justice to apply for a statutory order restraining such conduct.  However, for the reasons already noted, this will often not be an effective option.

66.  A different response has been to apply for what has come to be known as an “extended Grepe v Loam order”, referred to in this judgment as an “extended order”.  When faced with a litigant who vexatiously issues a series of fresh actions with a view to re-litigating a case which he has already lost, the courts have imposed a restraint against commencing such proceedings without the leave of the court, once more invoking the inherent jurisdiction to prevent abuse of process.  This approach was pioneered by Lord Woolf MR in Ebert v Venvil (above), and elaborated upon by Lord Phillips MR in Bhamjee (No 2) (where the order was named the “extended civil restraint order” at§41).  Although in the present case, the courts below have referred to the subject order as a “Grepe v Loam order”, it is actually an extended order.  It seeks to constrain the issue of fresh proceedings and not merely applications within an existing action.

67.  Whether there is power to make extended orders by virtue of the court’s inherent jurisdiction and without any statutory basis is the subject of this appeal.  While stating that such a power is “highly desirable”, the Final Report noted that some uncertainty (discussed below) existed as to whether the inherent jurisdiction could be relied on for restricting the right of access to the courts (see §§438 to 462).  It recommended that the uncertainty be removed by improving the accessibility of HCO, s 27 statutory orders and widening their scope.

The Basic Law and extended orders

68.  The appellant, who was not legally represented, submitted a medical certificate indicating that he was unwell and asked that his associate, Mr Brumen Li (who is not a lawyer), be allowed to address the Court on his behalf.  The Court exceptionally agreed to hear Mr Li.  It should be noted that the Court was in any event much assisted by the helpful research and submissions of Mr Bernard Man who acted as amicus curiae and who set out to place before the Court all arguments reasonably available to the appellant.  The Court is also grateful for the assistance of Mr Alan Leong SC, appearing with Ms Alexandra Norton for the respondents.

69.  The appellant sought to challenge extended orders on the basis that they offend against Articles 35 and/or 39 of the Basic Law.  That argument was, however, not one advanced by the amicus.

70.  Those Articles relevantly provide as follows :

BL 35

Hong Kong residents shall have the right to ...... access to the courts, ...... and to judicial remedies.

Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.

BL 39

The provisions of the International Covenant on Civil and Political Rights, ...... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

71.  The reference in BL 39 to the ICCPR as applied to Hong Kong makes relevant Article 10 of the Hong Kong Bill of Rights (reflecting ICCPR Art 14.1) which is materially in the following terms :

BOR 10

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ......

72.  As I understand the appellant’s position, reflecting some of the concerns raised in the Final Report, two arguments are advanced.  In the first place, it is asserted that extended orders are inconsistent with the right of access to the courts guaranteed by BL 35 and BOR 10.  Secondly, it is argued that even if such orders might otherwise be valid as limitations on the right of access, they are not established at law with sufficient certainty to qualify, in BL 39 terms, as a restriction “prescribed by law”.   

73.  In my view, neither argument succeeds.  In relation to BL 35 and BOR 10, it has firmly been established in the jurisprudence of the European Court of Human Rights in relation to the closely analogous right of access under Art 6(1) of the European Human Rights Convention, that such right is by its nature not absolute, but may be subject to limitations.  Such limitations are valid if they pursue a legitimate aim, are proportionate to that aim and are not such as to impair the very essence of the right: Ashingdane v UK [1985] 7 EHRR 528 at §57; Tolstoy-Miloslavsky v United Kingdom (1995) 20 EHRR 442 at §59. 

74.  In H v UK [1985] 45 DR 281, this principle was applied by the European Commission of Human Rights to declare inadmissible an Article 6(1) challenge to the validity of an order made under the Vexatious Actions (Scotland) Act 1898.  The Commission pointed out that :

“...... the vexatious litigant order ...... did not limit the applicant’s access to court completely, but provided for a review by a senior judge of the Scottish judiciary of any case the applicant wished to bring.  The Commission considers that such a review is not such as to deny the essence of the right of access to court; indeed, some form of regulation of access to court is necessary in the interests of the proper administration of justice and must therefore be regarded as a legitimate aim.

Further, the Commission finds that in the present case the means employed in regulating access to court by the applicant were not disproportionate to the aim of ensuring the proper administration of justice ......”

75.  The abovementioned principles were adopted by the English Court of Appeal in AG v Covey; AG v Mathews [2001] EWCA Civ 254, 19 February 2001 at §§60-61, in upholding the validity of vexatious litigant orders made under s 42 of the Supreme Court Act 1981. 

76.  In my view, those principles are plainly appropriate for application in Hong Kong both with regard to statutory orders made under HCO, s 27 and extended orders.  Such orders pursue the legitimate aim of preventing harm to the proper administration of justice and preventing the vexatious oppression of other litigants.  They are proportionate measures and do not impair the very essence of the right in that they provide a judicial mechanism for allowing proper cases to be brought forward. 

77.  Turning to the BL 39 argument, any relevant uncertainty that there may previously have been in relation to the validity of extended orders falls to be dealt with in the present appeal.  If and in so far as the Court upholds such orders and formulates the relevant principles in the present case, no room would remain for arguing that such orders are unconstitutional by reason of uncertainty and hence inconsistency with BL 39.  The Final Report was of course written from a different perspective.  The Working Party was identifying possible uncertainties with a view to suggesting reforms and, unlike this Court, was not in a position to resolve any relevant doubts.

78.  It is accordingly my view that the use of extended orders is consistent with the Basic Law and the Hong Kong Bill of Rights.

Extended orders and the inherent jurisdiction

79.  One may accordingly return to the central question in this appeal: Does the inherent jurisdiction provide a sufficient foundation for the making of extended orders or must they be authorized by statute?

(a) The statutory displacement argument

80.  Two arguments supporting the need for a statute have been raised.  I shall refer to the first of these as the “statutory displacement argument” which proceeds as follows :

(a) While the court undoubtedly has an inherent jurisdiction to prevent abuse of its process, there may be cases where the legislature has intervened to regulate some matter which might otherwise have been dealt with under the inherent jurisdiction. 

(b) HCO, s 27 is one such example.  The legislature has laid down the conditions for obtaining orders to restrain a vexatious litigant from issuing fresh proceedings.  Such conditions include the requirement that applications be made by the Secretary for Justice and the high threshold requirements.

(c) In this area, the court’s inherent jurisdiction must be regarded as having been displaced by the statute.  The court cannot purport, in reliance on its inherent jurisdiction, to grant relief which is the same as that provided for by s 27 on the basis of different and less stringent conditions.

(d) Any party who wants to restrain fresh proceedings must therefore take the statutory route.

81.  As Lord Woolf MR accepted in Ebert v Venvil at p 493 (after recording that the parties did not dispute the court’s inherent jurisdiction to make an ordinary Grepe v Loam order) :

“This does not mean that intervention of Parliament may not have cut down the inherent jurisdiction of the court.  If there was an application for an order of the same width as the statutory jurisdiction, the court could only appropriately deal with such an application under the statutory jurisdiction.” 

(b) The constitutional right argument

82.  The second argument in support of a requirement for statutory intervention may be called the “constitutional right argument”.  It centres on the contention that because extended orders restrict the right of access to the courts they can only validly be made if expressly authorized by statute.

83.  There is certainly ample authority that the right of unimpeded access to the courts is regarded at common law as a constitutional right and that abrogation of that right requires express statutory provision.  Thus, in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286, Viscount Simonds stated :

“It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.”

Similarly, in Raymond v Honey [1983] 1 AC 1 at 14, Lord Bridge noted that :

“...... a citizen's right to unimpeded access to the courts can only be taken away by express enactment.”

As Laws J explained in R v Lord Chancellor ex p Witham [1998] QB 575 at 585 :

“...... the common law has clearly given special weight to the citizen's right of access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right.”

84.  These principles were applied in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311, where the bank had sought an order :

“...... ‘pursuant to the inherent jurisdiction’ of the Court that no legal proceedings should be instituted or applications in existing proceedings made or appeals lodged by the plaintiffs in the action or either of them without leave of a justice of the Court ‘by reason of their having habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, made repeated vexatious applications in pending actions and conducted legal proceedings in a vexatious and time-wasting manner’.”  (pp 311-2)

The High Court of Australia held that the inherent jurisdiction did not confer power on the court to make such an order :

“In our opinion, it is not surprising that the Courts do not appear (so far as we have been able to discover) to have taken the further step of intervening in a summary way to prevent the commencement, except by leave, of actions and other proceedings by a particular person or persons but have limited themselves to exercising their powers in relation to proceedings which have been taken in a Court and have thus been placed under its control. It may be that the exercise of supervision, by means of a requirement that leave should be obtained for the bringing of proceedings, could have been justified logically as a proper safeguard against abuse of the Court's process in cases where it was shown to be probable that a person would continue bringing groundless proceedings. But, in our opinion, it is apparent that the Courts, both in England and in this country, have declined to regard themselves as having power to do so, except where such power has been conferred upon them by an Act of Parliament or by Rules promulgated under statutory authority. This is demonstrated, not merely by the absence of reported cases in which such orders have been made under the inherent power of the Court, but by the fact that it has been thought necessary to deal with specific cases of the bringing of numerous unfounded proceedings by legislation rather than by invoking the inherent power of the Court. There have been cases in which the vexatious character of the proceedings was so clear that it cannot be supposed that the Court would have hesitated to exercise such a power if it had been regarded as existing.” (pp 314-5)

85.  An earlier attempt in New Zealand to obtain an order “to prevent the plaintiff’s commencing of any further action against the [defendant] Board without the precedent leave of the Court” had also failed for similar reasons: see Stewart v Auckland Transport Board [1951] NZLR 576. 

(c) Extended orders properly made in the inherent jurisdiction 

86.  The principles discussed above, underlying both the statutory displacement argument and the constitutional right argument, are plainly well-established.  However, that is not to say that those arguments themselves are to be accepted.  The crucial question is whether the application of those principles does result in excluding extended orders from the courts’ inherent jurisdiction.  This requires first an examination of the essential features of such orders.

87.  The terms of the extended order made by Neuberger J and upheld by the Court of Appeal in Ebert v Venvil [2000] Ch 484are set out at pp 491-2 of the report.  In Bhamjee (No 2), Lord Phillips MR described the essential features of that order as follows :

“(i)  It extended not only to applications in the current proceedings but also to taking any steps (including the issuing of new proceedings) in any division of the High Court or in any county court against the defendant bank or its legal representatives in or arising out of or concerning a wide range of matters defined in the order without the leave of a judge being first obtained.

(ii)  Any application for leave had to be made without notice in writing to one of two named judges of the Chancery Division and would be dealt with on paper.

(iii)  Six clear working days' written notice of any such application had to be given to the bank's solicitors, and if they replied in writing their response had to accompany the application.” (at p 96)

Later in that judgment, when summarising the guidance given as to the making of extended civil restraint orders, Lord Phillips MR described them as orders which :

“...... will restrain the litigant from instituting proceedings or making applications in the courts identified in the order in or out of or concerning any matters involving or relating to or touching upon or leading to the proceedings in which it is made without the permission of a judge identified in the order.” (at p 102)

88.  While the subject order was not drawn up in such terms and suffers from certain deficiencies considered below, it is appropriate in the present case to proceed on the footing that the extended orders under discussion exhibit the features described by Lord Phillips MR above.  I would add that the court’s permission to proceed should be understood to cover two situations: (i) where the court directs that no leave is needed (the new matter falling outside the defined class of proceedings requiring leave); and (ii) where the court considers the new proceedings to fall within the relevant class but, in its discretion, allows them to go forward notwithstanding.  The decision to grant leave is necessarily without prejudice to any inter partes application that the defendant may wish to mount to strike out the proceedings or to set aside the leave, as appropriate.

89.  The blanket effect of statutory orders prohibiting any kind of legal proceedings without leave against any person has already been mentioned.  They also make it a condition of such leave that the court must be satisfied that the proceedings are not an abuse and that there is prima facie ground for them.  An extended order is therefore significantly narrower. 

(a) First, it is not directed against any type of action whatsoever.  It requires leave to be obtained only in respect of fresh proceedings which are an attempt at re-litigating specified proceedings which have already been determined (including fresh proceedings where there may be added elements which do not detract from the reality that they are in truth an attempt at such re-litigation).  Extended orders are therefore limited by reference to the subject-matter of the new proceedings.

(b) Secondly, even where the proposed claim falls within the prohibited class of proceedings, it may nevertheless be allowed to go forward if it is arguably meritorious. 

(c) Although (as discussed below) the abovementioned process will in practice require that all fresh proceedings issued by a litigant subject to an extended order be judicially examined, those proceedings would only be looked at for the limited purpose of giving effect to the extended order and not with a view to screening out every proposed action which is not shown to be viable.

90.  In my view, these are important differences which lead to the conclusion that the statutory displacement argument is inapplicable.  Extended orders are not of the same width or effect as orders made under HCO, s 27.  This was the view taken by Lord Woolf MR in Ebert v Venvil, at p 490.  The statutory jurisdiction caters for the significantly wider blanket orders referred to above, and therefore does not by implication cut down on the court’s inherent jurisdiction to make the more limited extended orders.

91.  I note in passing that the headnote to the report of Tse Jeekeen v HK Alliance in Support of Patriotic Democratic Movement of China [2000] 2 HKC 339, suggests that the application for an extended order in that case was “in effect” an application for a statutory order under HCO, s 27 to be made by virtue of the court’s inherent jurisdiction “prohibiting a vexatious litigant from commencing new proceedings without the leave of the court”.  That statement is incorrect.  Neither the order made by Chung J (at 346G) nor extended orders in general seek to impose a blanket prohibition against commencing new proceedings without leave.  The headnote also fails to reflect Chung J’s citation (at 344G-H) of Lord Woolf MR’s observation that extended orders are more restricted than statutory orders and that orders of the same width as statutory orders can only appropriately be made under the statutory jurisdiction.

(d) The juridical basis of extended orders

92.  As with simple Grepe v Loam orders, extended orders are founded on the court’s inherent jurisdiction to prevent abuse of its process.  This was the starting-point of Lord Woolf MR when addressing the juridical basis of such orders in Ebert v Venvil (at 496):

“We prefer to approach the issues from a standpoint of principle. Doing so, the starting point must be the extensive nature of the inherent jurisdiction of any court to prevent its procedure being abused. We see 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 are manifestly threatened but not yet initiated.”

93.  Pointing to the fact that the court has undoubted injunctive powers to restrain anticipated proceedings, both within the jurisdiction and abroad, in order to protect an applicant from serious and imminent anticipated damage, his Lordship continued :

“We can see 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.”  (at p 497)

94.  While this means imposing abnormal constraints on the vexatious litigant, Lord Woolf MR pointed out that the constraints are not absolute and that such orders, with their limiting features, reflect and are a response to the type and degree of abuse which they seek to restrain :

“The making of an extended Grepe v Loam order or a Grepe v Loam order in its usual form does involve a serious inhibition on a prospective litigant exercising his normal rights of access to the courts.  However, the extent of this interference should not be exaggerated.  First it is only an inhibition on bringing proceedings without the leave of the court.  If the proceedings are arguably meritorious leave will be forthcoming.  Secondly, the court will not make an order unless there are serious grounds for doing so and if there are no serious grounds, the order will be capable of being set aside on appeal.” (at 497)

95.  I respectfully agree with these comments.  In my view, once the nature of the extended order is appreciated, it is evident that cases like the Pyx Granite case, Raymond v Honey and ex p Witham (discussed above in the context of the constitutional right argument) are distinguishable.  The constitutional right which they address is the right of access to the court for the vindication of legal rights and interests.  The vexatious litigant is only subjected to restraint under an extended order where he is engaged in an abuse of the court’s process.  Often, that litigant will already have fully exercised the right of access before vexatiously seeking to re-litigate the exhausted proceedings. Such restraint does not involve interference with any constitutional right and the cases cited do not require such orders to be placed on a statutory footing. 

96.  In Attorney-General v Vernazza [1960] AC 965 at 977, Lord Denning drew a clear distinction between a legitimate exercise of the right of access and conduct abusive of the court’s process :

“The courts of this country have an inherent power to ‘prevent the abuse of legal machinery which would occur, if for no possible benefit the defendants are to be dragged through litigation which must be long and expensive’, see Willis v Earl Beauchamp (1886) 11 PD 59, 63; by Bowen LJ: and when the courts of this country exercise this power, they are not depriving a man of a vested right. They are only exercising a control over their own procedure.  No man, let alone a vexatious litigant, has a vested right to bring or continue proceedings which are an abuse of the process of the court.”

97.  Lord Phillips MR echoed this in Bhamjee (No 2) at §33:

“...... no litigant has any substantive right to trouble the court with litigation which represents an abuse of its process.”

98.  It is also noteworthy that in Commonwealth Trading Bank v Inglis and Stewart v Auckland Transport Board, cited above, the orders sought and held to fall beyond the court’s inherent jurisdiction were blanket prohibitions against starting any fresh proceedings and not orders limited in the way that extended orders are limited.  It is significant that in the Inglis case, Barwick CJ and McTiernan J pointed out that :

“The application is not framed so as to limit such future proceedings to proceedings of the same kind as those that have been previously brought or to proceedings against the applicant or against other specified persons who have already been sued by the respondents.  It refers to any legal proceedings against any person.” (at p 313)

99.  It is reasonable to suppose that the High Court of Australia might well have taken a different view if asked to consider an extended order containing the limitations referred to in the passage just cited.  Indeed, this was precisely the assumption upon which French J based his decision in Hunter v Leahy (1999) 91 FCR 214, in the Australian Federal Court.  His Honour stated (at p 221) :

“I do not regard the decision in Commonwealth Trading Bank v Inglis as so constraining the inherent jurisdiction or the implied incidental power of this Court or the application of s 23 [of the Federal Court of Australia Act 1976 (Cth)], that it can prevent this Court from restraining the institution of proceedings which, in effect, seek to relitigate the substance of matters already determined in proceedings which have been disposed of in the Court. As in the Wentworth case the touchstone of the Court's power must be substance rather than form. I think therefore that although on the authority of Inglis, Sheppard J's order was too widely cast, it can be recast to meet the difficulties posed by Mr Hunter's continued attempts to relitigate the issue on which he has thus far been unsuccessful.”

100.  The court’s inherent jurisdiction to make extended orders is therefore now firmly established in England and Wales, as shown by Ebert v Venvil and Bhamjee (No 2).  It also appears that a similar implied jurisdiction may be coming to be recognized in Australia.  It has been recognized in Singapore: see Chua Choon Lim Robert v MN Swami [2000] 4 SLR 494.  It is, in my view, a soundly-based jurisdiction which is equally enjoyed by our courts.  Accordingly, the subject order, which was intended to be an extended order, was made within jurisdiction and justified on the facts, although the appropriateness of its terms will require examination.

Other protective measures and statutory reform

101.  The focus of this judgment has of course been on extended orders.  It should not, however, be thought that the court’s inherent jurisdiction to prevent abuse of its process is rigidly confined to the measures so far discussed.  Abuse of process may come in a wide variety of forms and be of different degrees and, subject to the principles discussed above, the court’s inherent jurisdiction enables it flexibly to develop such proportionate responses as may be appropriate. 

(a) Ancillary directions

102.  It is in this context that the courts have, for instance, developed ancillary directions aimed at increasing the effectiveness of Grepe v Loam and extended orders.  Examples of such directions were given by Lord Phillips MR in Bhamjee (No 2) :

“The extended Grepe v Loam order contained the novelty that the High Court was now able to restrict the litigant's activities in the county court (so long as they referred to the same matter). ...... Other novelties were that all Mr Ebert's applications were reserved to one or other of two named judges in the Chancery Division (and, in due course, to only one), and that they might be disposed of on paper.  It appears from Laws LJ's judgment in Attorney-General v Ebert (unreported) 7 July 2000 (at para [33]) that two judges of that division later felt constrained to make a further order to the effect that Mr Ebert be not allowed to make applications under the Grepe v Loam order more frequently than once every 2 months, unless he could demonstrate that a more urgent application was called for.” (at §29)

(b) Other types of constraint

103.  As Lord Phillips MR further indicated, the court might also increase the range of its armoury, adding other types of constraint against persistent abuse:

“......we must not be taken to be excluding the possibility that other forms of order may be made if the situation seems to demand it. For instance, it may on occasion be thought appropriate to direct that permission to make an application or to institute an action will only be considered if an advocate with higher court rights of audience considers there is merit in it, or that the requisite applications in the High Court should be made to a Master in the first instance. The possibilities are unlimited. What is important is that the remedy should always be proportionate to the mischief that needs remedying.” (Bhamjee (No 2) at §35)

(c) “General civil restraint orders”

104.  In Bhamjee (No 2), the English Court of Appeal developed the jurisdiction further by authorizing, on the basis of the inherent jurisdiction, imposition of what were called “general civil restraint orders” in cases where Grepe v Loam orders (or “civil restraint orders”) and extended orders (“extended civil restraint orders”) were found insufficient.  Lord Phillips MR stated that in such an event :

“At High Court level, a High Court judge may make an order generally restraining the litigant from instituting any action or making any application in the High Court without first obtaining the permission of an identified High Court judge in an all-paper proceeding. The purpose of such an order will be to protect the process of the High Court from abuse, so that the order may not be extended to include the county court. The order will identify the judge to whom any applications for the requisite permission should be made. A general civil restraint order should be made for a period not exceeding 2 years, unless subsequently extended.” 

105.  Whether the Hong Kong courts have jurisdiction to make such an order does not arise for decision in the present appeal.  Given the experience of the English courts, I would not wish to rule out such orders.  But there may be jurisdictional difficulties.  A general civil restraint order may be thought to come uncomfortably close to the blanket statutory orders presently obtainable under HCO, s 27.  Introduction of general civil restraint orders would require serious consideration to be given to the statutory displacement argument in that context.

(d) Amending HCO, s 27

106.  It would in any event be advisable to give urgent consideration to amending HCO, s 27 with a view to widening its scope.  There is much force in the recommendation made in the Final Report (at §463) that the court should have power to make statutory orders upon the application of any person directly affected by the vexatious conduct without the intervention or consent of the Secretary for Justice.  One could perhaps consider for adoption, legislation along the lines of the South African Vexatious Proceedings Act referred to in Beinash v Ernst & Young [1999] 2 SA 116.  Section 2(1)(b) of that Act materially provides:

“If on an application made by any person against whom legal proceedings have been instituted by any other person or who has reason to believe that the institution of legal proceedings against him is contemplated by any other person, the Court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any Court ...... whether against the same person or against different persons, ......  the Court may [after the necessary procedures and being duly satisfied, make the statutory order].”

(e) Injunctions and contempt of court

107.  At the extreme end of the spectrum of responses to vexatious litigation, lies injunctive relief backed by the sanctions applicable to contempt of court.  

108.  This remedy was resorted to by the Attorney-General in AG v Ebert [2002] 2 All ER 789, some 10 months after a statutory order had been made against Mr Ebert under s 42 of the Supreme Court Act 1981.  The Attorney-General put his case for injunctive relief on the need “to stop [Mr Ebert’s] interfering with the proper administration of justice” (at §23).  Brooke LJ accepted that there was a distinction between “Mr Ebert’s practice of making innumerable applications (which can be kept under control by other techniques)” and conduct involving “disturbances of the process of the court” (§39).  The conduct in question (described at §§12-18) involved, for example, Mr Ebert repeatedly demanding that the court deal immediately with his applications, going so far as to interrupt, on several occasions, the designated judge’s conduct of other proceedings to press for this; accusing the judge of corruption and other crimes; and physically seizing hold of a barrister who had appeared against him while purporting to make a citizen’s arrest in respect of the barrister’s alleged fraud. 

109.  Plainly, this was an extreme case and the relief sought – and obtained – by the Attorney-General was draconian.  Brooke LJ summarised that relief in these terms :

“First, that Mr Ebert should be barred from entering the Royal Courts of Justice without express permission, except for the purposes of attending a hearing for which he has been granted permission. Secondly, that he should be barred from any form of communication with anyone at the court except for the purpose of making the formal applications mentioned in the draft order. Thirdly, that any application he makes must be made in writing in a particular form and determined in writing (unless the court directs an oral hearing). And finally, that any application of any kind which is not made in that form should stand dismissed without being heard.” (at §24)

110.  In my view, similar relief, on similar grounds, would in principle be available in this jurisdiction.  The court’s jurisdiction to grant injunctive relief to prevent anticipated interference with the administration of justice amounting to a contempt is well established: eg, Attorney-General v Times Newspapers Ltd [1974] AC 273; Raymond v Honey [1983] 1 AC 1 at 10.  But it is only when the litigant’s vexatious conduct passes into the realms of disrupting the administration of justice in a manner constituting a contempt that such powers should be invoked.

Formulating and implementing extended orders

111.  This is an area of developing jurisprudence.  As the case-law shows, the courts have been refining the form of extended orders and developing ancillary directions in aid thereof.  Supporting arrangements also need to be put in place by the court system to promote their effectiveness.  Details concerning the terms of the orders, appropriate directions and the court system’s operational arrangements will have to be progressively worked out in individual cases, in practice directions and perhaps in rules of court.  This is applies also to cases where the court initiates consideration of Grepe v Loam or extended orders of its own motion, as indicated by the Chief Justice.  In the present judgment, it is necessary to refer to certain matters of principle regarding the contents and operation of extended orders which bear upon the viability of the subject order.

112.  Where a Grepe v Loam order or an extended order is made, it is important that the scope of the restraint is clear and that, supported by any desirable ancillary directions, it consciously aims to promote, in a workable manner, the objectives of preventing abuse at minimum cost to the vexed party and to the courts, in terms of time, effort and money.

(a) Grepe v Loam orders

113.  Simple Grepe v Loam orders present few difficulties.  The order restrains the making of all further applications in an existing case without leave of the judge.  If such leave has not been obtained, everyone can simply ignore the application (including any purported application to the master) and it is deemed to have been dismissed.  Operation of such an order requires no qualitative judgment as to when leave is required: it is always required.  To improve its efficiency, directions can and should be given :

(a) for any application for leave to be made ex parte in writing to a designated judge or judges identified in the order, without notification to the proposed respondent and for the decision as to leave to be made without an oral hearing; and,

(b) where leave has been given, requiring the order giving leave to accompany service of the application on the respondent. 

(b) Extended orders

114.  The important difference between the extended order and the ordinary Grepe v Loam order is that the former restrains the institution without leave of only certain classes of proceedings, usually defined by reference to the subject-matter of proceedings which have already been litigated.  This means that extended orders do require a qualitative assessment of the new proceedings to see whether they fall within the class requiring leave. 

115.  One must therefore ask who makes that assessment.  In my view, that task must fall to a judge.  As a matter of course, all fresh proceedings issued by a party who is subject to an extended order have to be vetted for compliance with that order, ideally by the judge who made the extended order or, if not, by a designated judge who has some familiarity with the background.  However, in principle, it should not be left to court staff who are not judges or judicial officers.  Certainly the staff at the counter of the High Court Registry cannot be expected to undertake that task when deciding whether to seal a Writ or some other form of process. 

116.  There is no difficulty with putting the abovementioned decision-making process in train where the vexatious litigant duly applies to the court before issuing the fresh proceedings.  But what if he chooses to issue proceedings without approaching the court?  The Writ or other proceedings will be sealed and issued without any vetting and then served on the defendant.  If this is allowed to go unchecked, it undermines the entire protective scheme.

117.  Two measures ought to be put in place to deal with this situation.  First, the court system, no doubt using its information technology resources, must have a means for detecting all fresh proceedings issued by persons subject to a valid extended order (bearing in mind that they may in some cases be of limited duration).  Once detected, the system should ensure that the fresh proceedings are referred to a judge so that an appropriate decision can be taken: whether to dismiss the proceedings, to give leave to proceed or to direct that leave is not required, with the decision then notified to the named defendants.

118.  Secondly, a rule or direction should be in place providing that if any fresh proceedings served on defendants protected by an extended order are unaccompanied by either a court order giving leave to proceed or a direction that leave is not required, such defendants are entitled to do nothing in response until such time as they are notified of the court’s decision in relation to those fresh proceedings. Time for acknowledging service and defending the proceedings should automatically be deemed to be extended until such notice is received. 

119.  It is of course possible that, despite any monitoring system put in place in the High Court Registry, new proceedings commenced by a vexatious litigant who is subject to an extended order may slip through without being brought to the attention of the judge.  In such cases, the second rule would still apply and no basis would exist for judgment to be entered in default of the defendant acknowledging service.  If default judgment should nonetheless purport to be entered, the defendant should notify the court that he is protected by an extended order and the court should then set aside all steps taken since issue of the fresh proceedings and refer the matter to the designated judge for a decision as to whether it should be allowed to proceed in the light of the terms of the extended order, such curative measures all being taken without any oral hearing or further participation of the defendant.

120.  A further consequence of the need for a qualitative assessment relates to the drawing up of the extended order.  It is essential that there should be clarity in defining the class of proceedings where leave must be obtained.

(a) Plainly, an order may disallow any attempt to re-litigate without leave a cause of action disposed of as res judicata or a matter which comes within the principle explained in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581.  However, experience shows that this may not give sufficient protection.  The abuse may, for instance, involve the vexatious addition of defendants (such as witnesses who gave evidence for the other side, the lawyers, or even the judges, involved).  Spurious new elements may be introduced into the case, perhaps hoping to disguise the fact that it is in reality no more than an attempt at re-litigating a lost cause.  It is therefore legitimate for the order to be drawn so as to cover not merely the immediate subject-matter of the concluded proceedings but, for instance, also matters “involving or relating to or touching upon or leading to those proceedings” (as suggested by Lord Phillips MR in Bhamjee (No 2) at p 102).  It is possible that non-abusive proceedings might be caught by some such wider formulation.  However, in such cases the court could be expected to grant leave for the new proceedings to proceed.

(b) The order should also state whether the requirement only applies to cases in the High Court or whether it also extends to actions on the same subject-matter in the District Court.  In my view, the latter option legitimately falls within the province of an extended order as a measure against the relevant abuse.  The District Court equally has an inherent jurisdiction to protect its process against abuse and may make relevant orders applying the principles presently under consideration.

121.  In construing the terms of a Grepe v Loam order or an extended order and applying it to any fresh application or proceedings brought by the vexatious litigant, the court should look to the substance of what is sought to be done in the new matter and not to its form.  Thus, it is not uncommon for some collateral attack to be launched by vexatious litigants in the course of proceedings, for instance, by making unfounded allegations of perjury in relation to an affidavit or trying to commit the other side’s lawyers for contempt, and so forth.  A judge would be justified in treating such unfounded collateral attacks as in substance applications within the same proceedings for the purposes of a Grepe v Loam order, whatever their form.  As already indicated, new proceedings, even if embellished with additional elements, may in substance be a vexatious attempt to re-litigate the concluded matter.

122.  If the court itself is made the object of such a collateral attack, provided that the judge is satisfied that such attack is in substance no more than a vexatious attempt to re-litigate the exhausted matter, there ought generally to be no question of the judge having to disqualify himself from dealing with the matter.  The test for disqualification is whether the circumstances are such as would lead a reasonable, fair-minded and well-informed observer to conclude that that there is a real possibility that the judge would be biased in dealing with the matter: see Deacons v White & Case Ltd Liability Partnership (2003) 6 HKCFAR 322; and Financial Secretary v Wong (2003) 6 HKCFAR 476 at 496-7, §48.   In the situation postulated, it would be plain to such an observer that the attempt to disqualify the judge is itself part and parcel of the abuse and not such as to give rise to any apprehension of bias.  For a judge to recuse himself in such circumstances would be to give in to the abuse.

The subject order

123.  I have held that the subject order, which was intended to be an extended order, was made within jurisdiction and justified on the facts.  However, in the terms in which it was drawn up (set out in paragraph 28 above), it is not workable.  It adopts the wording of a simple Grepe v Loam order but seeks to constrain entirely fresh proceedings which are “in respect of the same claim or subject matter” as the specified concluded proceedings.  As discussed above, judicial consideration of whether the fresh proceedings fall within the order is required.  However, the subject order directs that “such” fresh proceedings – meaning those caught by the prohibition – should be “dismissed without being heard” if leave has not been obtained.  But in the absence of a judicial determination, one is not able to say that they are “such” fresh proceedings.  And without anyone addressing that question, it is impossible to see how the new claim can be dismissed without being heard. 

124.  Accordingly, the subject order cannot stand without amendment.  This was accepted by Mr Alan Leong SC.  Certain suggested amendments were put forward at the hearing but it is evident that further thought is needed regarding the terms of the extended order in the present case.  On the assumption that the respondents wish to submit for approval a draft amendment which takes into account the matters dealt with in the present decision, I would give the following directions, namely, that:

(a) All further proceedings with regard to the settling of the terms of any such amended order should be dealt with by a single Permanent Judge.

(b) The respondents should be at liberty, within 21 days after the date of the handing down of this judgment to submit to the Registrar of this Court, a draft amended order for approval by the Permanent Judge, serving a copy thereof on the appellant.

(c) Any representations, limited to comments on the terms of such draft amended order, which the appellant may wish to make for consideration by the Permanent Judge should be submitted in writing to the Registrar within 21 days thereafter, serving a copy thereof on the respondents.

(d) Any response which the respondents may wish to make should be submitted in writing to the Registrar within 14 days thereafter.

(e) Unless the Permanent Judge should direct otherwise, all of the aforesaid matters should be dealt with on the papers and without an oral hearing.

Vexatious appeals

125.  As exemplified by this case, vexatious litigants characteristically engage in the lodging of appeals, however hopeless, whenever some vexatious application or proceeding encounters a reversal.  This is part and parcel of the abuse which must be stopped.  If, in cases justifying the making of a Grepe v Loam order or an extended order, protective measures do not include prevention of abuse at the appellate level, one can expect the vexatious litigant to issue a stream of applications or fresh proceedings and, upon their rejection at first instance, appeal each such rejection to the next judicial tier.  This would seriously undermine the effectiveness of the Grepe v Loam jurisdiction.  What is the proper judicial response in such cases?

126.  The right of appeal is statutory.  Section 14 of the High Court Ordinance provides that subject to certain exceptions set out in subsection (3) which do not concern vexatious litigants, “an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter.”   At present there is no statutory requirement for leave to appeal even in relation to interlocutory judgments, although the Final Report has recommended introducing such a requirement (Recommendation 110).

127.  It is, however, important to construe HCO, s 14 in the light of its obvious purpose.  We have seen that the right of access to the courts, recognized as a constitutional right at common law and guaranteed by the Basic Law, is not to be interpreted as giving any person a licence to abuse the court’s process.  Equally, the right of appeal granted by statute was not provided so that the appellate process can be abused by vexatious litigants.  It is no less within the court’s inherent jurisdiction to prevent abuse of its appellate process.

128.  It is clear that the Court of Appeal may, in its inherent jurisdiction, strike out appeals which are frivolous, vexatious or an abuse of process: Burgess v Stafford Hotel Ltd [1990] 1 WLR 1215; see Hong Kong Civil Procedure 59/3/6.  Where a litigant has vexatiously abused the process of the court at first instance to a degree justifying a Grepe v Loam order or an extended order, and where he has also been shown to have abused the appellate process, the Court of Appeal has and should exercise the power to make a suitable form of order restricting future appeals by that litigant.

129.  The fact that the right of appeal is given by statute does not mean that the court’s inherent jurisdiction has in any way been displaced.  HCO, s 14 does not seek to regulate vexatious conduct, unlike HCO, s 27.  It defines the right of appeal and lays down exceptions, none of which concerns vexatious litigants.  It is of the essence of the court’s inherent jurisdiction that the court should have power to prevent the vexatious misuse of that statutory right.

130.  Adopting this view, the English Court of Appeal in Bhamjee (No 2) held that it would be consistent with the United Kingdom’s Human Rights protections to impose stringent restrictions on the right of appeal afforded to vexatious litigants :

“......if a litigant subject to an extended civil restraint order or a general civil restraint order continues to make the requisite applications pursuant to the order which are customarily dismissed on the grounds that they are totally devoid of merit, a judge may, if he thinks fit, direct that if any further application is dismissed on the same grounds, the decision will be final. This type of order should only be made by a High Court judge or a designated civil judge (or his appointed deputy). Thereafter an appeal court will have no jurisdiction to grant permission to appeal against any subsequent refusal of permission any more than it has jurisdiction to grant permission to appeal against an order made by a judge exercising his statutory powers under s 42(4) of the 1981 Act. We consider that if a litigant persists in instituting proceedings or making applications which are totally devoid of merit despite all the earlier efforts the court has made to restrain his litigious activities and to protect its process from abuse, then this will be a legitimate reason why the court should eventually deprive him of the ordinary right to seek to appeal to a higher level of court. It will be sufficient if any subsequent applications are considered once only.” (at §51)

131.  The reference to s 42(4) is to the provision in the Supreme Court Act 1981 which provides that where a statutory order has been made against a vexatious litigant, a dismissal of a subsequent leave application is final.  That was a provision upheld as valid in Ebert v Official Receiver [2002] 1 WLR 320.  No such provision currently exists in Hong Kong in relation to HCO, s 27 statutory orders.

132.  In Hong Kong, the power to prevent abuse of the appellate process should, in my view, be exercised by the Court of Appeal.  It should limit the right of appeal of vexatious litigants who have been made the subject of a Grepe v Loam order or an extended order by the Court of First Instance and who are seen to have abused the appellate process, as follows:

(a) There should in every case remain an unmodified right of appeal to the Court of Appeal against the making of the Grepe v Loam order or the extended order itself.  Such an appeal would be heard inter partes, involving the party or parties seeking to uphold the extended order.

(b) If the original order is upheld or if it has not been challenged, there should, subject to the next sub-paragraph, remain an unmodified right of appeal against the judge’s dismissal of an application for leave to issue a fresh application or fresh proceedings or dismissal of those proceedings themselves (where no application for leave had been made by the vexatious litigant).  Such an appeal would again be dealt with on an inter partes basis.

(c) In relation to appeals of the type just described, the Court of Appeal should have a discretion, whether at the hearing of the first appeal or on a subsequent occasion, if satisfied that the appellate process has been abused, to order that the vexatious litigant should in future not be permitted to appeal to the Court of Appeal against any future refusals of leave or dismissals at first instance unless permission to bring an appeal is granted by the first instance judge. 

(d) Such permission to appeal might be granted by the first instance judge, for example, in relation to extended orders, where the judge decides that the fresh proceedings are caught by the extended order and that no grounds exist for granting leave to proceed with them, but acknowledges that there may be reasonable grounds for challenging that decision so that an appeal would not be an abuse of the appellate process. 

(e) Where the Court of Appeal makes an order restricting appeals, a subsequent decision by the first instance judge to refuse leave to proceed with, or to dismiss, further applications or fresh proceedings, coupled with a refusal of leave to appeal to the Court of Appeal, will be final.  Neither the decision nor the refusal of leave to appeal to the Court of Appeal against the decision would be susceptible to appeal.

133.  In my view, the foregoing restrictions on the right of appeal in the context of Grepe v Loam orders and extended orders would be consistent with the protections provided under the Basic Law and the Bill of Rights. 

134.  In The Belgian Linguistic Case (No 2) (1968) 1 EHRR 252 at 283, the Strasbourg Court approached restrictions on appeal in the context of the analogous right of access under Art 6 of the European Convention on Human Rights as follows :

“...... Article 6 of the Convention does not compel States to institute a system of appeal courts.  A State which does set up such courts consequently goes beyond its obligations under Article 6.  However it would violate that Article, read in conjunction with Article 14 [which prohibits discrimination], were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions.”

135.  Citing this decision, Buxton LJ in Ebert v Official Receiver (at §12), considered it “trite law that Convention jurisprudence does not require a state to provide an appellate procedure, as opposed to access to a court of first instance.”  It does however appear that, taken in tandem with the Article 14 right against discrimination, where an appeal is in fact provided by statute, there must not be discrimination against any particular class of persons without a legitimate reason.  Similar protection against discrimination exists under Article 1 of the Hong Kong Bill of Rights which may be read in conjunction with BOR 10.

136.  In any event, the Strasbourg jurisprudence accepts that a restriction on the right of access to the courts imposed on vexatious litigants – even a blanket restriction imposed by a statutory order – is in principle acceptable as a restriction on the access right subject to the criteria of legitimacy and proportionality already discussed.  Since the right of access does not imply any right of appeal it must a fortiori be the case that the proposed restrictions on appeal, which represent a proportionate and judicially monitored measure against abuse of process at the appellate level is legitimate in the context of BL 35.  On the same grounds, such restrictions are not inconsistent with the anti-discrimination provisions of the Bill of Rights.

137.  In Solicitor v Law Society of Hong Kong and Secretary for Justice (2003) 6 HKCFAR 570, this Court examined the validity of statutory restrictions on appeals to itself (being the Court vested with the right of final appeal by the Basic Law).   In that case, the limitation was contained in legislation making appeals from the Disciplinary Committee of the Law Society to the Court of Appeal final.  It was, of course, not a case involving a restriction against a litigant with a history of vexatiously abusing the process, but a general restriction for all cases.  This Court accepted that even such broad restrictions were constitutionally valid provided that the limitation pursues a legitimate purpose, with reasonable proportionality between the limitation and the purpose sought to be achieved: at p 584-5, §31.  This reinforces my view that where the restriction on appeals is a response to sustained abuse of the court’s process and a demonstrated tendency to extend such abuse to the appellate courts, that restriction is justified.

Conclusion and costs

138.  I would accordingly dismiss the appeal subject to the respondents submitting a draft order which receives the Court’s approval in accordance with the directions set out in paragraph 124 above.

139.  This appeal has given the Court an opportunity to give general guidance in relation to a developing area of the law.  While the respondents have succeeded in upholding the jurisdiction to make an extended order on the facts of the present case, it has been necessary for the subject order to be set aside as unworkable.   In these circumstances, it is appropriate that there should be no order as to costs in relation to this appeal. 

140.  I would accordingly make an order nisi that each party should bear its own costs and direct that any submissions which the parties may wish to make regarding such order nisi should be made in writing, filed and served on the other side within 21 days from the date of the handing down of this judgment, with any written submissions in reply filed and served within 21 days thereafter; and that, in the event that no such submissions are filed within the time limited, the order for costs should become absolute without further order.

Lord Scott of Foscote NPJ :

141.  I agree with the judgment of the Chief Justice and the judgment of Mr Justice Ribeiro PJ.

Chief Justice Li :

142.  The Court unanimously dismisses the appeal subject to approval by a single Permanent Judge of the Court of a draft order to be submitted by the respondents, amending the extended order made below, in accordance with the directions set out in paragraph 124.  The Court also makes the costs order nisi set out in the final paragraph of the judgment of Mr Justice Ribeiro PJ.