Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
21
C. A.
m
^
Jfoy2i,29.
22
VEXATIOUS
ACTIONS
B
in re.
jTreR'
[1915]
or some judge thereof and satisfies the Court or judge that such
legal proceeding is not an abuse of the process of the Court and
that there is a prima facie ground for such proceeding."
jj. a p p e a r e d from an affidavit made by the applicant that on
May 21, 1913, the applicant "gave the clerk of the Central
Criminal Court statutory notice in writing t h a t " he " purposed
at the next ensuing sessions to be held on May 27, 1913, to
present a bill of indictment to the grand jury against JohnEsson
& Son, Limited, in respect of certain misdemeanours committed
within the jurisdiction of the Central Criminal Court and over
which the Courts of summary jurisdiction had no jurisdiction to
hear and determine or to commit for trial."
On May 28, 1913, he was requested by an official in the
indictment office of the Central Criminal Court to go to the
Eecorder, Sir Forrest Fulton, who was sitting in Court. He
went, and the Recorder referred to the Vexatious Actions Act,
1896, and expressed the opinion that the order of December 17,
1910, prohibited the applicant from instituting any legal pro
ceedings unless he had obtained the leave of the High Court or
some judge thereof to present the bill of indictment to the grand
jury; that he could not give the applicant leave because he was
not a judge of the High Court; and finally said that the applicant
could not institute criminal proceedings without the leave of the
High Court or of some judge thereof. The applicant had
previously applied to a magistrate for a summons upon an
information sworn by him, but the magistrate refused the appli
cation without giving any reasons. For the purposes of this
motion, however, the Court assumed that the refusal was upon
the ground that the order of December 17,1910, was a bar to the
application.
The applicant having subsequently obtained leave of a
Divisional Court, served notice of motion upon the AttorneyGeneral, John Esson & Son, Limited, Edward Kennedy Howes,
the liquidator thereof, and certain other persons against whom
he alleged the commission of certain criminal offences, for an
order (inter alia) that the order of December 17, 1910, restrain
ing him from instituting legal proceedings unless he complied
with the conditions imposed by it, might be limited to civil legal
1 K. B.
23.
-& re.
j^'
24
VEXATIOUS
/CTIi89r
In re
B
/?frR'
[1915]
1 K. B.
cited Lumsden
Hakes. (2)]
25
C. A.
19H
VEXATIOUS
ACTIONS
ACT 1896
z^re, '
BOALEB,
26
[1915]
C. A.
1914
'
fc>
1 K. B.
Sussex Peerage Case (1): " If the words of the statute are in
themselves precise and unambiguous, then no more can be
necessary than to expound those words in their natural and
ordinary sense. The words themselves alone do, in such case,
27
c. A.
1914
VEXATIOUS
AcTI0
ACT,
*\s
1896,
In re.
BOALEB,
Bucklcv Ii> J
" The Vexatious Actions Act, 1896." The marginal note to the
1st section r u n s : " Power of Court to prohibit the institution
of action without leave." The word " action " is not elsewhere
found in or about the statute. I set wholly out of consideration
the fact that the word " action " is thus used. As to title the
matter is governed by the title placed at the head of the Act,
and -that is " A n Act to prevent Abuse of the Process of the
High Court or other Courts by the Institution of Vexatious Legal
Proceedings." That is the governing title. The fact that for
the purpose of identification only and not of enactment also
authority is given to identify the statute by a particular name
in which the word " action" occurs is, I think, immaterial.
The words " This Act may be cited as the Vexatious Actions
Act, 1896," effect nothing by way of enactment. They do no
more than create a name, and whether it is as matter of
description accurate or not is immaterial. In support of this
view I refer to that which Lord Haldane said in Vacher & Sons
v. London Society of Compositors (2) as regards the title " Trade
Disputes Act, 1906," and that which Lord Moulton said in the
same case (3), and to that which the latter said further in
National Telephone Co. v. Postmaster-General. (4) I may add
that if any importance were attributed to the "word " a c t i o n "
it is not a word from whose meaning are excluded proceedings
in a criminal Court. Comyns' Digest under the title of Action
says that " in life . . . . everyone . . . . has a property and
right and if they are violated the law gives an action to redress
the wrong," and Bacon's Abridgment says that " actions are
divided into criminal and civil." With this I leave this matter.
The language of the Act is that if a person has habitually and
(1) (1844) 11 CI. & F. 85, at p. 143.
(2) [1913] A. 0. at p. 114.
28
VEXATIOUS
ACTIONS
in re.
BOALER,
[1915]
In re.
" proceedings " is used to indicate criminal proceedings.
I may
Buckley L.J.
1 K. B.
The words " legal proceedings " are twice used in the Act of
1896. According to ordinary principles of construction they ought
to receive the same interpretation in each case in which they are
29
c. A.
1914
VEXATIOUS
ACTIONS
ACT, 18!)6,
in re.
>^IjEB>
B<
Buckley L.J.
80
[1915]
c. A.
19H
1K. B.
31
CT,
1896,
appeal ought to be discharged, and that there should be substituted a declaration that criminal proceedings are within the
meaning of the words " legal proceedings " in the Act of 1896.
KENNEDY L.J. read the following judgment:The result of
this appeal depends wholly upon the interpretation of the expres
sion " legal proceedings " in s. 1 of the Vexatious Actions Act,
1896 (59 & 60 .Vict. c. 51). Do these words or do they not
include criminal as well as civil proceedings ? The Divisional
Court by a majority (Darling and Lush JJ., Bankes J. dissenting)
has decided that they do not, and we, in the Court of Appeal, are
invited by the appellant to hold that this decision was wrong.
There is no sort of doubt, in regard to the proper principle
of interpreting a statutory enactment, that a judicial tribunal
which is called upon to interpret is bound as a general rule, if
the effect of the words of the enactment, read in their ordinary
and natural sense, is clear and unambiguous, to give to those words
that effect and no other. The Legislature must be intended to
mean what it has plainly expressed. " It matters not in such a
case what the consequences may be. Where, by the use of clear
and unequivocal language, capable of only one meaning, anything
is enacted by the Legislature, it must be enforced even though
it be absurd and mischievous. If the words go beyond what
was probably the intention effect must, nevertheless, be given
to them " : Maxwell on the Interpretation of Statutes, 5th ed.,
p. 5; and see per Lord Esher M.E. in Reg. v. City of London
Court. (1) Lord Macnaghten in Vacher d Sons v. London
Society of Compositors (2) and Lord Haldane L.C. in Inland
Revenue Commissioners v. Herbert (3) have recently stated the
law in almost equally stringent terms.
(1) [18921 1 Q. B. 273, at p. 290.
(2) [1913] A. C. at p. 118.
(3) [1913] A. 0. 326, at p. 332.
ey
82
VEXATIOUS
AOTPISM
in re.
i>M-eR'
KennT~Lj
B
[1915]
The present case is not that case. It is, in my view, irupossible to say that the meaning of the expression "legal
proceedings " is in itself and by itself clear and unambiguous.
^^ e wor< ^ 8 ' * a ^ e n by themselves, have a sufficient and a natural
meaning if they are read as referring either to civil proceed%B o r * C1 'i m i n al proceedings; or they may be inclusive and
s m
^ f y both civil and criminal proceedings.
In the present contest no one contends that the words " legal
proceedings " are to be read as 'applying only to criminal pro
ceedings : the question is whether they ought to be read as
including any but civil proceedings. It by no means follows,
because the words are wide enough to do so, that they ought so
to be interpreted. Speaking of general words in a statute Mr.
Maxwell at p. 97 observes: " However wide in the abstract, they
are more or less elastic and admit of restriction or expansion to
suit the subject-matter . . . . It is, therefore, a canon of inter
pretation that all words, if they be general and not express and
precise, are to be restricted to the fitness of the matter." So
" persons " may or may not include corporations; " inhabitants "
may or may not include all actual dwellers in the locality. In Cox
v. Hakes (1) Lord Halsbury L.C. at p. 515 to 517 deals with, and
justifies by quotation, the right to give in the interpretation of
general words in a statute a narrower or limited meaning if the
intention of the Legislature appears to require it. I shall not
quote the whole of the passage, but I will quote one sentence
only. The question there was as to the interpretation in regard
to the right of appeal from an order of the Queen's Bench Divi
sion for discharging a person under a habeas corpus. The
Judicature Act, 1873, s. 19, gives the Court of Appeal power to
hear appeals in all matters not criminal. The Lord Chancellor,
in reference to this s. 19, said: " My Lords, I do not deny that
the words of s. 19 literally construed are sufficient to compre
hend the case of an order of discharge made upon an application
for discharge upon a writ of habeas corpus ; but it is impossible
to contend that the mere fact of a general word being used in a
statute precludes all inquiry into the object of the statute or the
mischief which it was intended to remedy." In the present case
-
1 K. B.
83
this Court has to consider the true meaning in this statute of the .c. A.
general words " legal proceedings." We are therefore at liberty,
1914
and indeed in the performance of our judicial duty are bound, VEXATIOUS
in ascertaining that which we have to try to ascertain, namely, ,ATI1ils.
the intention of the Legislature, to consider, in choosing between
in re.
the possible interpretations, the context itself, the accord or BOALEB,
the want of accord of one or other interpretation with well . . . , .
1.
Kennedy L.J.
34
VEXATIOUS
AcTI
* ,s
[1915]
.ACT) l o J O j
in re.
BOALBE,
Kennedy L.J.
>
1K.B.
35
D 2
36
VEXATIOUS
^3T TI S
In re.
B
/M TO '
Scrutton J.
[1915]
against those laws to the grand jury at the Old Bailey, and was
refused by direction of the Eecorder as he had not obtained the
leave of a judge of the High Court. He also desired on a sworn
i n f r m a tion to apply for a summons to a magistrate, and was
refused on t h e same ground. A Divisional Court allowed h i m to
v e to set aside or vary t h e order made under t h e Act of 1896
on t h e ground t h a t it did n o t prevent h i s endeavouring to initiate
1 K. B.
37
this meaning with the feeling that unless its language clearly
c. A.
convinces me that this was the intention of the Legislature I
mi
shall be slow to give effect to what is a most serious interference VEXATIOUS
with the liberties of the subject. Omitting for the moment the ACTIONS
,
.A.CT, 1 0 * 7 0 .
title, or short title, the material enacting words are that if the in re.
Attorney-General satisfies the Court that any person has habi- BOALBR,
tually and persistently instituted vexatious legal proceedings
' .
without any reasonable ground for instituting such proceedings,
whether in the High Court or in any inferior Court, the Court
may order that no legal proceedings shall be instituted by that
person in the High Court or any other Court, unless he obtains
the leave of the High Court or some judge thereof. The words
" legal proceedings " are, in my opinion, wide enough to cover
criminal as well as civil process; " instituting legal proceedings,"
however, seems to me a phrase much more appropriate to civil
than to criminal process. A subject of the King by issuing a
writ against a person within the jurisdiction institutes a
proceeding which must proceed. He can serve the writ and
obtain judgment by default, or compel the defendant to take part
in the proceedings. A person presenting a bill of indictment to
a grand jury, or applying for a summons to a magistrate, sets on
foot of his own motion no proceedings which injure the accused.
Nothing will happen unless the grand jury find a true bill, or
the magistrate gives leave to issue the summons; and when the
grand jury or the magistrate has allowed the proceedings to
affect the accused, the proceeding is not the private prosecutor's.
His name never, as far as I can trace, appears on the record:
the title is " The King " v. the accused. The King can control the
whole proceedings; he can deprive the private prosecutor of any
voice in them by taking over the prosecution; he can stop the
proceedings by entering a nolle prosequi. If the accused formally
pleads, the replication where there is a private prosecutor runs :
" The King's Coroner, or Clerk of Arraigns, or Clerk of Assize,"
as the case may be, " before the King himself who for our Lord
the King in this behalf prosecutes as to the plea of the said A.B.
puts himself upon the country." The private prosecutor can do
nothing to harm the accused unless a public body or officer
allowB the proceedings to go on, and they go on not as the
38
[1915]
C A.
1914
Iii re.
BOALBR,
1 K. B.
39
the widest meaning of the words used, but from the considerations
c. A.
that must have influenced Parliament in framing the enactment.
19U
For instance, the Judicature Acts provide that the Court of y EXATI0US
Appeal shall have jurisdiction to determine appeals from any A 011 ACT, loyOj
in re.
j*L^R'
40
[1915]
c. A.
19H
'
1 K. B.
41