Vexatious litigant has no real prospect of succeeding in libel claim against Ministry of Justice

On Monday judgment was handed down in Lee Johnson v Ministry of Justice [2018] EWHC 2829 (QB). Foskett J allowed the MoJ’s application for summary judgment against Mr Johnson.

The unusual background to this case was that Mr Johnson brought defamation proceedings against the MoJ following a publication on its website stating that he was subject to a General Civil Restraint Order. This was wrong. At the relevant time he was only subject to a Limited Civil Restraint Order. Mr Johnson complained that he had been libelled as a vexatious litigant. The publication spanned the coming into force of the Defamation Act 2013. The claim was originally struck out – [2016] EWHC 177 (QB) – but on Mr Johnson’s appeal, his common law claim was reinstated, albeit that his claim under the Act remained struck out on the basis that he could not show serious harm.

In the interim, Mr Johnson was made the subject of an All Proceedings Civil Restraint Order by the Divisional Court – Attorney General v Johnson [2017] EWHC 979 (Admin). As stated by Foskett J,

“2… [this] judgment demonstrated that the Claimant was an inveterate litigator of almost always hopeless causes.”

None of the matters considered by the Divisional Court were known to the MoJ when it originally applied to strike out the claim. The MoJ brought a second application for strike out / summary judgment relying on the record of the Claimant’s vexatious litigation, now pleaded in its particulars of justification.

The Claimant maintained that the matters set out in the judgment of the Divisional Court, to which the MoJ was a stranger, were inadmissible pursuant to the rule in Hollington v F Hewthorn & Company Ltd [1943] 2 AER 35, and that the MoJ was required to prove the 45 examples of vexatious litigation recorded by the Divisional Court at trial of the matter.

Foskett J recorded his reservations about this submission:

32… Hollington is a much-criticised case, but naturally I would be obliged to follow its ratio if it was directly in point in this case notwithstanding that practice now is very different from what it was when that case was argued 75 years ago. On a purely practical level it would, in my view, be an absurd and disproportionate waste of time and resources for it to be necessary for a court considering the question of whether a claimant’s alleged status as an inveterate litigator of hopeless causes is established in a defamation case to ignore a finding to that effect by another court (particularly at the same or higher level as the court undertaking that task) where that finding has been based on repeated individual findings by other judges or tribunals in other cases.  I do find it difficult to believe that any such scenario could possibly have been contemplated by the Court of Appeal in Hollington’s case.”

The judge proceeded to admit the source material underlying the judgment of the Divisional Court as hearsay evidence (Hourani v Thomson [2017] EWHC 432 (QB) applied) with the effect that the defence of justification was sustained and the MoJ entitled to summary judgment.

David Mitchell, instructed by the Government Legal Department, acted for the Ministry of Justice.

A copy of the judgment is available here.

1st November 2018