Read the full judgment text of FACV 000005/2004 on BabelCite. This FACV judgment was delivered on 20 January 2005 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Lord Scott of Foscote NPJ.
Civil procedure – inherent jurisdiction – vexatious litigants – extended Grepe v Loam orders – whether the Court of First Instance and Court of Appeal have inherent jurisdiction, without statutory authority, to make an extended order restraining a vexatious litigant from instituting fresh proceedings of a defined class without leave – whether such jurisdiction has been displaced by s.27 of the High Court Ordinance (Cap 4) – whether extended orders are consistent with the constitutional right of access to the courts under Basic Law Articles 35 and 39 and Hong Kong Bill of Rights Article 10 – proper formulation and implementation of extended orders – restrictions on appeals by vexatious litigants. The appellant, a minority shareholder in Max Share Limited, lost a winding-up petition in the Court of Appeal and was refused leave to appeal by the Appeal Committee. He then issued fresh proceedings in 2002, repeating unfounded allegations of fraud against the Court of Appeal and the Appeal Committee, and conducted an extensive letter-writing campaign accusing the courts of dishonesty. Deputy Judge Carlson struck out the statement of claim and made the subject order prohibiting the appellant from commencing further proceedings 'in respect of the same claim or subject-matter' without leave, relying on the court's inherent jurisdiction. On the issue of jurisdiction: held, the court has inherent jurisdiction to make extended orders; the statutory displacement argument based on s.27 of the High Court Ordinance fails because extended orders are materially narrower than blanket statutory orders (limited to a defined class of proceedings, not all proceedings against all persons), and the constitutional right argument fails because the right of access is not absolute and may be subject to proportionate limitations pursuing a legitimate aim, following Strasbourg jurisprudence (Ashingdane v UK, H v UK, Tolstoy-Miloslavsky v UK). The Commonwealth Trading Bank v Inglis and Stewart v Auckland Transport Board line is distinguished as concerning blanket prohibitions rather than limited class-based orders. Extended orders are consistent with the Basic Law and the Bill of Rights. On formulation: the subject order was set aside as unworkable because it required dismissal of fresh proceedings 'without being heard' without a prior judicial determination that they fell within the prohibited class. Directions were given for the respondents to submit a draft amended order to a designated Permanent Judge, with fresh proceedings to be vetted by a judge for compliance, supported by registry detection mechanisms and ancillary directions protecting defendants from having to respond to unvetted proceedings. On appeals: the Court of Appeal has inherent jurisdiction to restrict appeals by vexatious litigants, with a graduated framework preserving the right to appeal against the making of the order itself and ordinarily against refusals of leave, but permitting ultimate restriction upon demonstrated abuse. Costs: order nisi that each party bear its own costs, given the general guidance value of the appeal and the setting aside of the unworkable order.
Legal issues: Inherent jurisdiction to make extended Grepe v Loam orders · Constitutional validity of extended orders under BL 35, BL 39 and BOR 10 · Statutory displacement by HCO s.27 · Proper formulation and workability of extended orders · Restrictions on appeals by vexatious litigants
Outcome: Appeal dismissed; jurisdiction to make extended order upheld; subject order set aside as unworkable; directions given for submission of a draft amended order to a designated Permanent Judge; costs order nisi that each party bear its own costs.
Cited by 10 cases · Cites 5 cases