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The difficulty concerns the recent case-law, led by Lord Woolf in Ebert v Venvil
[2000] Ch 484, which relies on Grepe v Loam to justify restraining persons from
instituting new proceedings. In Ebert v Venvil, the plaintiff was a bankrupt who had
commenced a series of vexatious proceedings in the High Court against his trustee in
bankruptcy, the bankruptcy petitioner and a bank. Having already made a Grepe v
Loam order against him in one action, the judge proceeded to make an order
prohibiting the plaintiff from issuing any new proceedings in the High Court or in any
county court against the bank or its legal representatives concerning any matters
involving or relating to the bankruptcy proceedings.
On appeal,
Lord Woolf MR, delivering the judgment of the court, upheld the judge.
His Lordship noted that the Grepe v Loam jurisdiction to restrain abusive applications
was clearly established and saw the question posed as "whether the court has
jurisdiction in appropriate circumstances to make Grepe v Loam orders prohibiting
new proceedings being commenced without the leave of the court ...... " Noting that
the order made was narrower in scope than an order imposing blanket restrictions on
instituting any proceedings capable of being made under section 42 and also noting
that there were New Zealand and Australian cases holding that the jurisdiction did not
exist, his Lordship stated :-
"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." (at 496)
Lord Woolf concluded that, in line with the court's "general approach ...... in recent
years ...... not to restrict the inherent jurisdiction of the court but to adopt a broad
approach where this is appropriate," jurisdiction to extend Grepe v Loam orders to
restraining the institution of proceedings ought to be asserted. In so doing, he rejected
the argument that this approach might offend against Art 6 of the ECHR, stating :-
"Article 6 does no more than reflect the approach of the common law indicated by Laws J in
Reg v Lord Chancellor, Ex parte Witham [1998] QB 575. As long as the inherent power is
exercised only when it is appropriate for it to be exercised, no contravention of article 6 or
common law principle is involved." (at 497)
Notes
Proceedings for a vexatious litigant order under section 42 of the 1981 Act, taken out by the
Attorney-General, were pending.
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