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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> HM Attorney-General v Ebert [2001] EWHC Admin 695 (21st September, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/695.html Cite as: [2001] EWHC Admin 695, [2002] 2 All ER 789

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H M ATTORNEY-GENERAL v. GEDALJAHU EBERT [2001] EWHC Admin 695 (21st September, 2001)

Case No: CO/1713/2001
Neutral Citation Number: [2001] EWHC Admin 695
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 21st September 2001

(i) On 18th September 1997 Laddie J dismissed a motion by Mr Ebert to commit Ralph Wolff's solicitor to prison for contempt of court. He said that the allegations on which the motion was based constituted an example of Mr Ebert's willingness to make wild and unsupportable allegations of the most damning nature against not just his former business partner but anybody associated with him. He made a Grepe v Loam order.
(ii) On 10th December 1997 Neuberger J dismissed an application by Mr Ebert for annulment of the bankruptcy order. He said that concerns he had once had that matters had not been fairly investigated before the bankruptcy order was upheld were now at rest.
(iii) On 19th January 1998 Rimer J dismissed an application by Mr Ebert to commit Ralph Wolff and his solicitor to prison. He said it constituted a gross abuse of the process of the court.
(iv) On 25th March 1998 the Court of Appeal dismissed an application by Mr Ebert for permission to appeal Neuberger J's order at (ii) above. During the course of his judgment Potter LJ dismissed as a technicality Mr Ebert's complaints that the judgment entered in the cause book by the deputy master had never been reduced downwards and had never been perfected. He also rejected as a curable irregularity the point that although the Midland Bank's judgment against Morris Wolff was for a slightly higher amount than the bank's reduced judgment against Mr Ebert, the bankruptcy order was made on the larger of these two sums.
(v) On 30th April and 7th July 1998 Neuberger J dismissed further applications by Mr Ebert, in which he was contending that Ralph Wolff should only be entitled to prove for half the amount Mr Ebert owed to Midland Bank, and seeking to set aside the assignment and the transaction between Ralph Wolff and the Midland Bank. The judge made a third Grepe v Loam order (a second having been made by Carnwath J on 5th February 1998). In future, any applications by Mr Ebert for leave were to be made to Rimer J or Neuberger J and dealt with on paper.
(vi) On 10th September 1998 the Court of Appeal dismissed an application by Mr Ebert for permission to appeal Neuberger J's order of 7th July 1998 on the basis that he could not raise again the same matters which he had raised unsuccessfully so often before. It adjourned for later consideration an issue relating to the scope of the Grepe v Loam order made on 7th July.
(vii) On 1st October 1998 Neuberger J refused an application by Mr Ebert for permission to raise an issue as to whether Ralph Wolff had paid the consideration for the assignment, and three weeks later he struck out as abusive an application by Mr Ebert against the liquidator of Europride and the Midland Bank. He also made a fourth Grepe v Loam order.
(viii) On 14th January and 29th March 1999 Neuberger J dismissed two further attempts by Mr Ebert to set aside the bankruptcy order. On the second occasion he said that this appeared to be yet another attempt by Mr Ebert to raise points which had been gone over time and again. The Court of Appeal on 20th April 1999 refused permission to appeal the first of these orders.
(ix) On 30th March 1999, in a judgment reported at [1999] 3 WLR 670, the Court of Appeal dismissed Mr Ebert's challenge to the width of the Grepe v Loam orders. Lord Woolf said that the court was prepared to accept that Mr Ebert might initially have been hard done by, because his co-guarantor had avoided all liability, but that it was clear that he had already brought vexatious proceedings and that he would continue to bring vexatious proceedings unless he was restrained from doing so.
(x) On 25th May 1999 Neuberger J dismissed three applications by Mr Ebert which represented an effort to set aside earlier orders made against him. He said that they were all hopeless.
(xi) On 14th July 1999 Neuberger J refused an application by Mr Ebert for permission to challenge the statutory demand, the petition and the bankruptcy order. Mr Ebert was now suggesting that the judge was guilty of "fraud and blackmail", and made other aspersions against him. The judge declined to recuse himself for reasons set out on pages 3 and 4 of his short written statement of that date. He said he did not think Mr Ebert was making the allegations against him out of malice.
(xii) In paragraph 30 of his judgment Laws LJ described two further orders by the Court of Appeal and two further orders made by Neuberger J between July and October 1999, all dismissing various applications made by Mr Ebert in respect of different aspects of `the Europride saga'. In December 1999, in a further judgment, Neuberger J referred to the fact that Mr Ebert had made a total of 50 (possibly over 80) applications of various sorts, all of which had failed.
(xiii) On 6th March 2000, Laddie and Neuberger JJ, sitting as a Divisional Court of the Chancery Division, dismissed a further application by Mr Ebert in the bankruptcy proceedings. On this occasion Mr Ebert was seeking to re-litigate a point concerned with an alleged forgery which had been decided against him by Rimer J two years earlier. The court now directed that Mr Ebert should not be allowed to make applications under the Grepe v Loam orders more frequently than once every two months unless he could demonstrate in writing that a more urgent application was called for.
(xiv) On three occasions between 14th March and 12th April 2000 Neuberger J dismissed further applications by Mr Ebert under the Grepe v Loam orders.

7. In paragraphs 48-53 of his judgment, with which Silber J agreed, Laws LJ explained why he considered that an order under section 42 of the Supreme Court Act 1981 was required. He said that Mr Ebert's obsessions had cut him away from reality, and that he was entirely unable to appreciate the hopelessness of any further process he might commence in relation to the judgment, the assignment or the bankruptcy order. His vexatious proceedings had been very damaging to the public interest, because scarce and valuable judicial resources had been extravagantly wasted on barren and misconceived litigation, to the detriment of other litigants with real cases to try. He identified four advantages to be obtained from a section 42 order:

(i) His judgment would provide a compendious overview of the whole of the relevant litigation history, to which any judge dealing with an application under section 42(1A)(a) would be able to refer;
(ii) There is no appeal against a first instance decision under section 42(3);
(iii) The court will avoid being vexed with arguments as to whether a particular fresh process is or is not caught by an extant Grepe v Loam order;
(iv) If the judge was in any doubt as to whether Mr Ebert should be granted permission to pursue an application, he could seek assistance from the Attorney-General, and it would not be necessary for Mr Ebert's adversaries to mount argument to dispel the doubt, as had happened on 6th March 2000.

8. In his short supporting judgment Silber J said (at para 64) that this case was uniquely strong in the light of Mr Ebert's burning determination to continue with these claims against the Wolff brothers and those connected with his bankruptcy in the face of many defeats in the courts. This was a very extreme instance of extreme litigation.

9. We have summarised this earlier history in some detail because, as Mr Keith has rightly reminded us, on this application for injunctive relief the court should be concerned not so much by what has happened in the past, but by what is likely to happen in the future if Mr Ebert's litigious activities are not further restrained.

10. The present application is supported by an affidavit and a witness statement made by Mr John Selch, the Group Manager of the Royal Courts of Justice, and a witness statement by Mr Donald Bennett, who is Neuberger J's clerk. The form this evidence took caused us some difficulty, because while it was all admissible Mr Selch could not give any direct evidence about the matters to which he deposed and Mr Bennett merely exhibited a great many documents. Mr Ebert disputed a number of Mr Selch's assertions, and an order requiring Mr Selch to attend for cross-examination would not have taken matters any further, because he would only have been able to say that he was recording what he had been told by others. In view of the scale of the restraints now sought by the Attorney-General, we decided to proceed on the basis of the facts which were not or could not properly be in dispute. Mr Garnham QC, who appeared for the Attorney-General, did not try to deflect us from this course once he had appreciated the difficulty.

11. Mr Selch told us that in the course of about 3½ years Mr Ebert had made at least 151 applications to the court for permission to issue fresh proceedings or applications in existing proceedings. All but 5 of these 151 applications were adjudicated on by Neuberger J and all were dismissed because they were without merit and generally repetitive of previous applications. He had made applications to the Court of Appeal for permission to appeal, all of which were refused, on at least 20 occasions. We did not understand Mr Ebert to dispute these figures. 20-30 further applications of one kind or another have been made. Sometimes his wife made applications in connection with the same general subject-matter.

12. The main thrust of Mr Selch's affidavit is set out in seven paragraphs headed "Disruption to the Administration of Justice". In so far as the facts are not in dispute, the history they describe runs along the following lines.

13. Mr Ebert has been in the habit of requesting that his applications to Neuberger J should be dealt with immediately or within 24 hours of his making them. Mr Ebert told us that this was his right, pursuant to the Bankruptcy Rules or the European Convention on Human Rights. When his applications were not dealt with within this timescale, he and his wife regularly followed them up with letters and telephone calls to court staff. Mr Ebert said that he could see nothing wrong in this, and that they had not been abusive to staff.

14. Next, Mr Ebert has on at least four occasions sat in court in cases before Neuberger J which did not involve him. He has often been accompanied by his wife. He denied that on his attendances at court he had frequently risen to interrupt the proceedings and to demand that Neuberger J dealt with his application first. On the other hand he did not dispute that security staff or the court tipstaff had been called on a number of occasions to remove him from the court at the request of the judge, his clerk or his usher. He said that this had happened on 5-6 or 10 different occasions.

15. We were shown correspondence from Mr Ebert to Neuberger J in which he accused the judge of being corrupt and having accepted bribes. His complaints about the judge's conduct (which contained references to conspiracy, high treason, perjury and crimes against humanity) became more and more shrill as time went on. In February 2001 Mr Ebert exhibited a notice outside the Royal Courts of Justice which contained allegations that Neuberger J and two other members of the judiciary concerned with his bankruptcy case had a profit share in a multi-million pound fraud.

16. On 22nd March 2001 Mr Ebert and his wife, accompanied by the president and chairman of the Litigants in Person Society, came to the counter in Room 110 of the Thomas More Building and requested that an urgent application by Mrs Ebert should be heard immediately by Mr Registrar James, who was working in his private room. When the registrar declined to deal with the matter immediately, Mr and Mrs Ebert said that if their application to have a roof over their head was not heard immediately they would call the police in respect of the registrar's non-obedience of the law.

17. The registrar eventually agreed to hear Mrs Ebert's application with two security guards present. One of them had already escorted Mr and Mrs Ebert out of Court 54 earlier in the morning. The application was dismissed because Mrs Ebert, who was also subject to a Grepe v Loam order, had not obtained permission from a High Court judge to make her application.

18. We omit reference to the facts set out in paragraphs 11 and 12 of Mr Selch's affidavit because they are in dispute. The final incident relied on occurred when a member of the court's security staff was summoned outside the Royal Courts of Justice, where he found Mr Ebert holding a barrister who had appeared against him on the basis that he had obtained a possession order by fraud and that Mr Ebert was entitled to make a citizen's arrest for theft. The police were called, and the parties to the incident went to the local police station, where the barrister declined to make a formal complaint. Mr Ebert did not dispute that this incident had occurred, but he maintained that he had effected the arrest outside the court gates and not, as alleged, in the West Green car park. He told us that so long as he was outside the court precincts he was entitled to effect a citizen's arrest on anyone, whether an opposing lawyer or even Neuberger J, who had deprived him of his property dishonestly in connection with these proceedings.

19. We have read with care all the documents exhibited by Mr Bennett which relate to the period after the section 42 order. Neuberger J appears to have dealt with the torrent of applications and correspondence which continued to flow from Mr Ebert with exemplary courtesy and patience. On at least one occasion he gave permission to Mr Ebert to seek permission to appeal, because of the accusations of corruption which Mr Ebert was making against him. Jonathan Parker LJ ruled that the proposed appeal would stand no chance of success. On many occasions Neuberger J dismissed Mr Ebert's applications on the basis that they raised no new points.

20. In his Acknowledgment of Service Mr Ebert said that he intended to contest the claim and to dispute the jurisdiction of the court. He sought a direction that the application be transferred to the Central Criminal Court. He referred to abuse of the process, torture, fraud and perjury as details of directions he was seeking from the court. He also objected to the Attorney-General issuing under this procedure. In addition to the other matters he mentioned he said that the procedure was defective and did not comply with CPR 3.4. We satisfied that the claim is properly brought, that this court has jurisdiction to hear it, and that it is inappropriate to transfer it to the Central Criminal Court as Mr Ebert suggests.

21. Mr Ebert appeared in person at the hearing of the Attorney-General's application. He produced a file containing 139 documents which related in one way or other to incidents in the Europride saga. He repeated points (such as those which Potter LJ had dismissed as curable irregularities or technicalities) which had already been litigated unsuccessfully before. He was particularly anxious that we should consider the effect of some bank statements which had recently come to light, which related to the 1993-5 history.

22. In view of the previous history of this matter, we consider that it would be very unwise for this court to attempt an analysis of the documents Mr Ebert showed us unless it is necessary to do so for the proper disposal of the Attorney-General's application. There have been judgments in favour of the Midland Bank in relation to the amount demanded of Mr Ebert and Morris Wolff under their guarantees in December 1992, with adjustments made for the incidence of interest and the receipt of sums totalling £41,356 from Receivers in 1993-4, and it is futile for Mr Ebert to reopen issues relating to the Midland Bank indebtedness on an application of this kind. If he has any genuinely new point, we understand that Patten J has now been assigned by the Vice-Chancellor to handle any applications by Mr Ebert, and he will be able to consider it. It was, incidentally, evident to us that many of the very technical matters to which Mr Ebert drew our attention had already been decided against him on one or more occasions in the past.

23. On this application we are concerned with issues relating to Mr Ebert's behaviour. The case for the Attorney-General on this application is that since the section 42 order was made against him, Mr Ebert's conduct has been such that further constraints must now be imposed on him to stop his interfering with the proper administration of justice. The Attorney-General accepts that Mr Ebert has a constitutional right of access to a court, and he does not seek to deny him that right. It is the manner in which Mr Ebert conducts himself in the pursuit of his various contentions of which complaint is made.

24. The Attorney-General seeks fourfold relief, which we will summarise in the following 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.

25. It is evident that at the heart of the Attorney-General's concerns is the worry that if Mr Ebert is not restrained in this way, he will continue to visit the Royal Courts of Justice and disrupt proceedings or waste the time of court staff, either by personal attendance in court offices or over the telephone, by making requests that his multitudinous applications should be given precedence over other court business. The evidence on which the court may act is less powerful than the evidence originally presented by Mr Selch, for the reasons given in paragraph 10 above, so that it is necessary to look with some care at the undisputed evidence.

26. It is not in dispute that on up to ten different occasions Mr Ebert has had to be removed from court by security guards. He asserted that he was not disturbing the court, but security guards are not requested to remove a litigant from court without some good reason. It is also not in dispute that he visited bankruptcy chambers and said that if the registrar did not break off what he was doing and hear an application made without notice, the police would be called.

27. It is also not in dispute that Mr Ebert on many occasions made requests of court staff to the effect that one or other of the many applications he was making should be dealt with by the judge immediately. It is possible to obtain a flavour of the peremptory demands Mr Ebert was in the habit of making by referring to the documents numbered 462, 495, 496, 530, 539, 554, 560, 577, 580, 599, 603, 611 and 612 in the main court bundle.

28. It is also not in dispute that Mr Ebert made many serious accusations against Neuberger J in many of the letters he wrote to him. Judges have to have broad shoulders, and the relevance of this evidence goes to the contention that Mr Ebert is now so completely obsessed by this litigation that he does not cavil about making allegations of corruption, high treason and crimes against humanity against the judge who has been handling the case with remarkable patience and sensitivity. He also published the notice outside the Royal Courts of Justice to which mention is made in paragraph 15 above. This illustrates how Mr Ebert's sense of perspective is now seriously out of kilter.

29. While we are willing to accept that Mr Ebert performed the citizen's arrest we have described in paragraph 18 above outside the precincts of the court, in the absence of direct evidence to contrary effect, the obsessive zeal with which he maintained that he was entitled to effect such an arrest on anyone connected with this litigation who had in his opinion defrauded him, even if it be the judge himself, provides evidence on which we can act to the effect that he has now lost all sense of proper perspective in the conduct of this litigation.

30. Mr Garnham showed us three judgments in which courts have had to exercise unusual powers in order to protect the integrity of the administration of justice. In re de Court (The Times, 27th November 1997) Sir Richard Scott VC was concerned with a litigant who had spat at the Chancery Clerk of the Lists. A medical certificate showed that he should be regarded as a person under disability: he had made over 100 attempts at instituting ridiculous or incomprehensible legal proceedings. The Vice-Chancellor held that he was in contempt of court. The Times report continues:

"His Lordship had a duty to provide protection to court officials not just in the High Court but also in any court where Mr de Court might seek to institute proceedings. He had an inherent power and duty to take those steps as a judge and Vice-Chancellor of the Chancery Division ...
In the exercise of that power he would make an order in two parts. First to restrain Mr de Court from pursuing any action in court except by a next friend who could act for him: second to restrain him from entering any civil court premises save as necessary to answer court subpoenas."

31. In ex p Leachman (COT 16th January 1998) this court was concerned with a litigant who had become wholly obsessed with the habeas corpus process and had lost all touch with reality. His behaviour in some ways mirrored that of Mr Ebert. Simon Brown LJ said that the court was told that he frequently telephoned Crown Office staff and demanded that they arranged immediate hearings for his applications. An order was made that no further application concerning his detention arising out of a 1993 conviction should be made, or (if made) be accepted or processed by the Crown Office, and that the litigant should not thereafter communicate with the Crown Office, save only in writing marked for the attention of a particular member of their staff.

32. In Binder v Binder (CAT 9th March 2000) a litigant had instituted innumerable proceedings in the Family Division in relation to his children. The Court of Appeal, in a judgment given by Thorpe LJ, with whom Laws LJ agreed, upheld an order made by the President of the Family Division in terms similar to the relief now being sought by the Attorney-General against Mr Ebert. The court of its own motion made an order protecting the staff of the Court of Appeal in terms similar to the President's order, which protected the staff of the Family Division.

33. Mr Garnham told us that although it might well be that Mr Ebert's conduct justified committal for contempt, the Attorney-General took the view that it would be preferable to regulate his future conduct rather than to seek to punish his past actions. Mr Ebert disputed that the Attorney-General was entitled to adopt this approach, and invited the court to direct him to take committal proceedings, but we see no reason why we should adopt this course. It is for the Attorney-General to identify the relief he seeks and not for this court to dictate to him what he should do.

34. Mr Keith, acting as the friend of the court, accepted the proposition that the court had the general power to control its own procedure so as to prevent its being used to achieve injustice and in order to maintain its character as a court of law ( Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation [1981] AC 909, 977D-G). He reminded us that in Ebert v Venvil [2000] Ch 484 the Court of Appeal extended the jurisdiction of the court to the prohibition, without the leave of the court, of new proceedings which are likely to constitute an abuse of process.

35. We accept Mr Keith's submission that the court's supervisory role now extends beyond the mere regulation of litigation and of litigants who have submitted themselves to the compulsory jurisdiction of the court. It includes the regulation of the manner in which the court process may in general be utilised. It is of course well established that the High Court may, in appropriate circumstances, grant an injunction to restrain an anticipated interference with the administration of justice, amounting to a contempt ( Attorney-General v Times Newspapers Ltd [1974] AC 273, 293G-294A, 306B). The advent of the Civil Procedure Rules only serves to bolster the principle that in the exercise of its inherent jurisdiction the court has the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in a completely obsessive pursuit of their own litigation, taking it forward by one unmeritorious application after another and insisting that they should be afforded priority over other litigants.

36. It goes without saying that every citizen has a right of access to a court both at common law and pursuant to ECHR Article 6. It is, however, implicit in the English caselaw (see Grepe v Loam (1887) 37 CLD 168 and Ebert v Venvil [2000] Ch 484) that this right of access is not absolute. This is also the effect of ECHR jurisprudence, which requires only that any limitations imposed on it must not impair the very essence of the right ( Stubbings v UK 23 EHRR 213, para 48). It is therefore incumbent on the court in the exercise of its power to control its own procedure, or to prevent future contempts of court, to ensure that nothing it may do amounts to an improper hindrance or interference with a litigant's right of access or is otherwise disproportionate.

37. Mr Ebert presented his case in response to the Attorney-General's application with moderation. He said that it was quite unreasonable to prevent him from using the library or the coffee shop or the toilets at the Royal Courts of Justice. He thought he enjoyed a good relationship with judges, apart from a few of them. He was, however, concerned and frustrated by the way in which Neuberger J treated him. He maintained that Neuberger J was incompetent and biased. He went on to make a number of points about the detailed contents of Mr Selch's affidavit, which we have already taken into account in this judgment. He maintained that the rules entitled him to a ruling forthwith whenever he made an application, and that he had been entitled to behave in the way he did when he urged court staff to list his cases. He said he had not threatened or abused court staff.

38. Mr Ebert argued that if he made unreasonable applications, jurisdiction already existed to control him. Even if he had misbehaved in Neuberger J's court, this was no reason to ban him from the entire court complex. He intended to go on making applications until he achieved a breakthrough and was allowed his day in court.

39. In our judgment a distinction must be made between Mr Ebert's practice of making innumerable applications (which can be kept under control by other techniques), and the matters set out in this judgment which amount to disturbances of the process of the court. Mr Garnham accepted that some of the matters on which he relied could have been regarded as contempts of court and been the subject of committal proceedings, if that course had seemed desirable. He said he was asking us to make an order restraining future conduct by Mr Ebert which was likely to constitute a contempt of court or an unwarrantable disruption of the administration of justice. For this purpose, he had to show a substantial likelihood that such misconduct would occur.

40. We have taken into account everything Mr Ebert has said to us and showed us, and we have already praised the moderate terms in which he addressed us. It is clear that he has developed an irrational obsession about the manner in which Neuberger J has dealt with the many applications he has made. We have already described how a different high court judge has been appointed to deal with any further applications which Mr Ebert may make, and it is to be hoped that he will desist in future from the intemperate abuse he heaped upon his predecessor.

41. Notwithstanding this change, we consider that the Attorney-General is entitled to the relief he seeks. It is completely clear that neither the Grepe v Loam orders nor the section 42 order have prevented Mr Ebert from wasting the time of court staff and disrupting the conduct of court business, even if they have succeeded in taking the burden off the many other parties to the Europride saga whom he has plagued with unmeritorious litigation during the last five years. A careful study of the papers produced by Neuberger J's clerk and of the judgments of different courts (including the judgment of Laws LJ last year) has persuaded us that there is a substantial risk that the process of the court will continue to be seriously abused, and that the proper administration of justice in the future will be seriously impeded by Mr Ebert in future unless we intervene now with appropriate injunctive relief. We see no reason, in the light of his conduct in the past, why Mr Ebert should be permitted to enter any part of the Royal Courts of Justice except to the extent allowed for in the injunction we will grant.

42. We also consider that Mr Ebert's past conduct is so exceptional that it is more appropriate that he be restrained by injunction than by the process of committal for contempt for individual acts, a process we would regard as completely pointless in the context of this case.

43. When we have handed down this judgment we will hear the parties in relation to the precise form the relief should take. We consider that any injunction should be for a period of three years in the first instance, with liberty to the Attorney-General to apply thereafter if, as events turn out, an extension of the duration of the injunction proves to be necessary. An order which is, in the first instance, limited in time in this way will be a proportionate response to the nuisance of which the Attorney-General makes complaint.