[1915]-1-K.B.-21

1 K. B . KING'S BENCH DIVISION. 21

[IN THE COUKT OF APPEAL.] C. A.

In re THE VEXATIOUS ACTIONS ACT, 1896. m ^ In re BEENABD BOALEE. Jfoy2i,29.

Practice—Vexatious Actions—Order that no Legal Proceedings be instituted without Leave of High Court—Criminal Proceedings—Vexatious Actions Act, 1896 (59 & 60 Vict. c. 51), i. 1.

By s. 1 of the Vexatious Actions Act, 1896, " I t shall be lawful for the Attorney-General to apply to the High Court for an order under this Act, and if he satisfies the High Court that any person has habitually 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, and satisfies the Court or judge that such legal proceeding is not an abuse of the process of the Court, and that there is prima facie ground for such proceeding."

Upon the application of the Attorney-General a Divisional Court made an order under the above section that no legal proceedings should be instituted by B. in the High Court or in any other Court unless he obtained the leave of the High Court or some judge thereof and satisfied the Court or judge that the legal proceeding was not an abuse of the process of the Court and that there was a prima facie ground for the proceeding :—

Held by Kennedy L.J. and Scrutton J. (Buckley L.J. dissenting), that the words "legal proceedings" in s. 1 do not include criminal proceedings, and that therefore the order of the Divisional Court was no bar to an application to a magistrate for a summons by B. upon an information sworn by him, nor to the presentment of an indictment by B. to a grand jury in respect of certain misdemeanours, without the leave of the High Court or a judge thereof.

Decision of Divisional Court [1914] 1 K. B. 122 affirmed.

APPEAL from the decision of a Divisional Court (Darling, Bankes, and Lush JJ.), reported [1914] 1 K. B. 122.

On December 17, 1910, a Divisional Court, upon the application of the Attorney-General, made the following order against the applicant, Bernard Boaler, under s. 1 of the Vexatious Actions Act, 1896 : " It is ordered that no legal proceedings shall be instituted by the said Bernard Boaler in the High Court or in any other Court unless he obtains the leave of the High Court

22 KING'S BENCH DIVISION. [1915]

c. A. or some judge thereof and satisfies the Court or judge that such 19U legal proceeding is not an abuse of the process of the Court and

VEXATIOUS that there is a prima facie ground for such proceeding." ACTIONS jj. a p p e a r e d from an affidavit made by the applicant that on in re. May 21, 1913, the applicant "gave the clerk of the Central

Bj«TreR' Criminal Court statutory notice in writing tha 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 proceedings 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 application 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 Attorney-General, 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, restraining him from instituting legal proceedings unless he complied with the conditions imposed by it, might be limited to civil legal

1 K. B. KING'S BENCH DIVISION. 23.

proceedings, or in the alternative for an order declaring that the c. A. power given to the High Court by the Vexatious Actions Act, 1914 1896, to forbid the institution of legal proceedings without leave VEXATIOUS of the Court only applied to civil proceedings and that the Court A011,0™

ACT, loJo ,

had no power to abrogate the applicant's common law right as a -&« re. citizen to prefer a bill of indictment to the grand jury of the B j^™' Central Criminal Court for felony or misdemeanour.

By s. 1 of the Vexatious Actions Act, 1896 (59 & 60 Vict. c. 51), it is provided that " It shall be lawful for the Attorney-General to apply to the High Court for an order under this Act, and if he satisfies the High Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing such person or giving him an opportunity of being heard, after assigning counsel in case such person is unable on account of poverty to retain counsel, 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, and satisfies the Court or judge that such legal proceeding is not an abuse of the process of the Court, and that there is prima facie ground for such proceeding. A copy of such order shall be published in the London Gazette."

The Divisional Court (Darling and Lush JJ., Bankes J. dissenting) held that the words " legal proceedings " in s. 1 did not include criminal proceedings, and that therefore the order of December 17, 1910, was no bar to an application to a magistrate for a summons by the applicant upon an information sworn by him, nor to the presentment of an indictment by the applicant to a grand jury in respect of the alleged misdemeanours, without the leave oi the High Court or a judge thereof.

The Attorney-General appealed.

Sir S. 0. Buckmaster, S.-G., and Branson, for the appellant. It is difficult for the respondent to contend that a criminal proceeding is not a " legal proceeding." It is important to see what


C A. is meant by the " High Court." By s. 29 of the Judicature Act, 19H 1873, the definition includes Courts of assize. It is true that

VEXATIOUS " a c ^ o n " i s defined in 8. 100 of that Act, and that it does not /CTIi°89r ^ n c ^ e " a criminal proceeding by the Crown " ; but that is

In re immaterial, for the word " action" does not occur in the B/?fr«R' ^ e x a t i ° u s Actions Act, 1896. In Bacon's Abridgment, tit.

Action, actions are divided into criminal and civil; and in Comyn's Digest, tit. Action, it is said that " there are two kinds of action, placita coronae, et civilia." The expression "legal proceedings" is used instead of " actions " intentionally in order to make the operation of the statute as wide as possible.

[SCRUTTON J. Is " institute " an appropriate word to use with reference to criminal proceedings?]

No doubt "commence" is a more ordinary expression, but " institute " is also used: see Costs in Criminal Cases Act, 1908 (8 Edw. 7, c. 15), s. 9, sub-s. 1, where the expression " prosecutor " is defined as including any person who appears to the Court to be a person at whose'instance " the prosecution has been instituted." It is true that the short title " The Vexatious Actions Act, 1896," is more applicable to civil than to criminal proceedings, but a short title is not conclusive nor indeed relevant except where the statute is ambiguous. It is a mere label, and cannot cut down the enacting part of the statute: Vacher dt Sons v. London Society of Compositors. (1) The full title " A n Act to prevent Abuse of the Process of the High Court or other Courts by the. Institution of Vexatious Legal Proceedings " can be properly used to include criminal proceedings. Constant ex parte. applications for criminal process would be both vexatious and harassing. [They also cited Reg. v. Yates (2); Reg. v. Adamson (3); Ex parte Wason. (4)]

The Respondent in person. There is no provision in the Vexatious Actions. Act, 1896, giving a right of appeal. The notice of appeal shows on the face of it that it is in a criminal cause or matter. The expression " legal proceedings " as used in the Act of 1896 does not apply to criminal proceedings. [He

(1) [1913] A. C. 107, at p. 128. 14 Q. B. D. 648. (2) (1883) 11 Q. B. D. 750; (1885) (3) (1875) 1 Q. B. D. 201.

(4) (1869) L. E. 4 Q. B. 573.

1 K. B. KING'S BENCH DIVISION. 25

cited Lumsden v. Inland Revenue Commissioners (1); Cox v. C. A. Hakes. (2)] 19H

Cur. adv. vult. VEXATIOUS ACTIONS

ACT 1896 May 29. BUCKLEY L.J. read the following judgment:—In z^re, '

point of form the application with which we have to deal is BOALEB,

singular, and a short statement is necessary in order to make plain how the matter comes before the Court.

On December 17, 1910, upon reading an affidavit of Edward Kennedy Howes, an order was made under the Vexatious Actions Act, 1896, in the terms of that Act prohibiting Mr. Boaler from instituting legal proceedings. The affidavit I have mentioned was one which stated that Mr. Boaler had brought, made, moved, taken out, lodged, supported or caused forty-six separate and distinct legal proceedings in connection with a company called John Esson & Son, Limited, of which short particulars were set out in a schedule to the affidavit. Nos. 2 to 7 in the schedule were informations by way of institution of criminal proceedings. On June 2, 1913, Mr. Boaler served a notice of motion in the Divisional Court asking for an order declaring that the order of December 17, 1910, did not prevent the applicant from instituting criminal proceedings. It appears that he had after December 17, 1910, and before June 2, 1913, attempted to institute criminal proceedings in two cases; in the one he attempted to prefer a bill of indictment before a grand jury at the Central Criminal Court, and in the other he applied to a magistrate to grant him a summons upon an information sworn by him. Upon that motion of June 2 the Divisional Court made no order except that Mr. Boaler was to be at liberty to serve a fresh notice of motion praying that the order of December 17, 1910, be discharged, or in the alternative that the same be limited to a prohibition in civil proceedings. Under the-leave thus given Mr. Boaler on June 18, 1913, served a notice of motion for an order discharging the order of December 17, 1910, upon grounds there assigned, or (4.) in the alternative for an order limiting the order to' civil proceedings, or (5.) for a declaration that upon the construction of the

(1) [1913] 3 K. B. 809, at p. 820. . (2) (1890) 15 App. Cas. 506.


C. A. Vexatious Actions Act, 1896, the High Court has no jurisdiction 1914 to make an order preventing him from preferring a bill of

VEXATIOUS indictment to a grand jury. Upon that motion the order now A^'isoe un<^er appeal was made. It would seem that by arrangement

in re. i n the presence of the Attorney-General and of Mr. Boaler the O^LEE, Qour(; heard an argument and expressed an opinion upon the

„ -—' T construction of the Act, and without going into other grounds Buckley L.J. ' o fc> o

upon which Mr. Boaler wished to contend that the order on December 17, 1910, was wrong, declared " that criminal offences are not within the meaning of the words ' legal proceedings ' mentioned in the Vexatious Actions Act, 1896." The word " offences " must here be a mistake for " proceedings." It is from this order that the Attorney-General appeals to this Court. It seems to me, and I think that was the view taken in the Court below, that the Attorney-General might have objected to any order at all being made upon Mr. Boaler's motion of June 18, but he did not do so, and by agreement the question of the construction of the Act was argued and decided by the Court. Under these circumstances I think this Court can properly review the decision of the Divisional Court upon the true construction, although technically it is difficult to say how in such a form of proceeding the jurisdiction to make or the true construction of the order of December 17, 1910, could be raised and decided.

The only question before us, and the only question I propose to consider, is the true construction of the Act of Parliament. The Act is one which contains no preamble. In the words of Lord Macnaghten in Vacher & Sons v. London Society of Compositors(1), " In the absence of a preamble there can, I think, be only two cases in which it is permissible to depart. from the ordinary and natural sense of the words of an enactment. It must be shewn either that the words taken in their natural sense lead to some absurdity or that there is some other clause in the body of the Act inconsistent with, or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is expressed." His Lordship had immediately before quoted the language of Tindal C.J. in the

(1) [1913] A1. C. 107, at p. 118.


Sussex Peerage Case (1): " If the words of the statute are in c. A. themselves precise and unambiguous, then no more can be 1914 necessary than to expound those words in their natural and VEXATIOUS

ordinary sense. The words themselves alone do, in • such case, AcTI0*\s„ ACT, 1896,

best declare the intention of the lawgiver." It is upon this In re. principle that I must proceed to construe this Act of Parliament. BOALEB,

The 2nd section of the Act gives it a short title, namely, Bucklcv Ii> J»

" The Vexatious Actions Act, 1896." The marginal note to the 1st section runs : " 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 "An 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 "ac t ion" 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. (3) [1913] A. C. at p. 128. (2) [1913] A. 0. at p. 114. (4) [1913] A. C. 546, at p. 560.


C. A persistently instituted vexatious legal proceedings, &c, the Court 19H may order that no legal proceedings shall be instituted by that

VEXATIOUS person. The words " legal proceedings " are, I think, applicable ACTIONS J;0 a n ( j ; n c i u c l e a s w e n criminal as civil proceedings in a Court.

in re. In the argument in the Court below the Solicitor-General BOALER, referred to several Acts of Parliament in which the word

In re. " proceedings " is used to indicate criminal proceedings. I may

Buckley L.J.

add as relevant to the particular criminal proceedings which Mr. Boaler desired to take that s. 65 of the Companies Act, 1862, was headed with the words " Legal Proceedings," and that s. 276 of the Companies (Consolidation) Act, 1908, is headed " Legal Proceedings, Offences, &c," and in both cases the sections which follow deal with (inter alia) criminal proceedings. In In re Briton Medical Association (1) it was held that criminal- proceedings were capable of being restrained under s. 85 of the Companies Act of 1862. Sect. 100 of the Judicature Act in defining an action speaks of a " civil proceeding" and of a " criminal proceeding." This is enough, I think, to show that the words " legal proceedings " are words sufficient in themselves to include criminal proceedings. 9 The words " legal proceedings " are no doubt general words, but generality is to my mind not ambiguity. The verb used in the Act is " institute." That is a word which is applicable to criminal proceedings. For instance, in s. 9 of the Costs in Criminal Cases Act, 1908, occur the words " a person at whose instance the prosecution has been instituted." The expression " to institute a prosecution" is, I think, an accurate one. Colloquially " to start or to launch a prosecution " might be used, but I should not expect to find those expressions in an Act of Parliament. The only other verbs which occur to me are " institute " or " initiate " or " begin." So far, therefore, the words of the Act seem to me to be sufficient to include criminal proceedings. Next, the proceedings which may be restrained are spoken of as proceedings in " the High Court or any other Court." By s. 16, sub-s. 11, of the Judicature Act, 1873, there is vested in .the High Court jurisdiction in criminal matters, and s. 29 speaks of " criminal jurisdiction capable of being exercised by the said High Court." Again, therefore, the ' (1) (1886) 32 Oh. TJ. 503.


words of the Act of Parliament are sufficient to include criminal c. A. proceedings in the High Court or any other Court even if the 1914 later words ought to be confined to other Courts having VEXATIOUS jurisdiction similar to that of the High Court. ACTIONS * D ACT, 18!)6,

The words " legal proceedings " are twice used in the Act of in re. 1896. According to ordinary principles of construction they ought B<>̂ IjEB> to receive the same interpretation in each case in which they are

Buckley L.J.

used. Ought the. words when first used to be taken to mean legal proceedings other than criminal proceedings ? Let me suppose a case in which a person has habitually and persistently instituted vexatious criminal proceedings, has repeatedly alleged fictitious criminal acts, and has habitually and persistently, whether against the same person or against different persons, instituted unfounded criminal proceedings, is there any reason in the language of the Act to doubt that it is intended to give power to order that no further criminal proceedings shall be instituted by him in the High Court or any other Court ? If that habitual and persistent institution of proceedings is proved, why am I to suppose that the plain words of the Act do not intend that a stop shall be put to it ? If then the words when first used include criminal proceedings the same words when next used must also include them, and the Act empowers the prohibition of criminal proceedings. If the case were one in which the persistent proceedings were civil proceedings only, it may be that the Act might reasonably have provided that a veto might be imposed upon like proceedings only to the exclusion of criminal proceedings, and inasmuch as the words of the Act are that " no legal proceedings shall be instituted " it may be that if an order is made it must extend to both. This, I think, is not matter for me to consider in determining what is the plain meaning of the words. I find in them a provision depriving a subject under extraordinary circumstances of those which would but for this Act of Parliament be his rights as a free citizen, and I have no right to say that the Legislature ought to have imposed a smaller right of veto than it has imposed. I have only to ascertain the ordinary and natural sense of the words. Construing the Act upon those principles it seems to me that the Act extends to criminal proceedings, and I so hold,


c. A. Considerations have been urged before us based upon questions 19H of public policy and the like. I do not think that these are

VEXATIOUS admissible when the question is only as to the meaning of the A C T T I 1 8 ! > 6 w o r a s °f the Act, Du* I wiU say a w o rd upon them as they have

in re. been raised. It seems to me that this is an Act giving extra-it1?-™' ordinary powers under extraordinary circumstances. On the —; T one side it is no doubt a grave matter that a subject should be

Buckley L.J. ° J

debarred from remedy if a criminal offence be committed against him. On the other hand it is a grave matter if a person has so conducted himself as to expose himself to an order under the extraordinary powers of this Act that he should be allowed to continue his litigious insistence undisturbed. As between those two matters the Legislature, I conceive, was convinced that the latter was the more grave. The subject is not deprived of redress, but being a person such as he is proved to be he is not allowed to seek redress until he has satisfied the proper authority that the legal proceedings he desires to take are not an abuse. I cannot think that the Act intended that, if (say) a person has persistently made false accusations of criminal offences and instituted prosecutions, it should not be possible to make an order under the Act against him. It is said that under such circumstances a magistrate might refuse a summons irrespective of this Act. This seems to me to overlook two facts, first, that the magistrate might well not have knowledge of, or if he had knowledge might have great difficulty in giving effect to, the known character of the intending prosecutor, and, secondly, that if the magistrate having such knowledge did on that ground refuse a summons he would be shutting the doors of a criminal Court against the intending prosecutor without giving him the benefit of the extraordinary precautions of the present Act which allow an order to be made only if the Attorney-General upon his responsibility takes it upon himself to apply to the Court for an order. At the date of this Act the Vexatious Indictments Act of 1859 had long been in operation and had been from time to time extended to other offences. It differs from the present Act in two respects, first, that it applies to every subject and not to the particular, class of person governed by the Act of 1890, and, secondly, that it applies only to certain offences, The Act of

1K. B. KING'S BENCH DIVISION. 31

1896 seems to me to cover a larger field in one respect and a c. A. smaller field in another. No inference, I think, is to be drawn 1914 from the fact that the Act of 1859 already dealt with criminal VEXATIOUS proceedings to a certain extent. ACTIONS

m i A C T , 1896,

The construction which I place upon the Act of 1896 is that In re. it extends to criminal proceedings. I think that the order under BOALER,

In re. appeal ought to be discharged, and that there should be sub-stituted a declaration that criminal proceedings are within the ey

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 expression " 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.

82 KINO'S BENCH DIVISION. [1915]

c. A. The present case is not that case. It is, in my view, irupos-1914 sible to say that the meaning of the expression "legal

VEXATIOUS proceedings " is in itself and by itself clear and unambiguous. AOTPISM ^^ e wor<^8' *a^en by themselves, have a sufficient and a natural

in re. meaning if they are read as referring either to civil proceed-Bi>M-eR' ™%B o r *° C1'iminal proceedings; or they may be inclusive and

KennT~Lj s ^ m fy 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 proceedings : 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 interpretation 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 Division 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 comprehend 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) 15 App. Cas. 506.


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, ,A°TI

1°ils. 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-

■ . . . , . i t . • 1. Kennedy L.J. recognized principles in regard to the interpretation of statutes, and, further, if other things are equal, the comparative reasonableness of the legislation as it is interpreted in one way or in the other. This last consideration, which I hold must be very cautiously applied, is put by Lord Esher (1) in its strongest form in the following words : "If the words of an Act admit of two interpretations then they are not clear; and if one interpretation leads to an absurdity and the other does not, the Court will conclude that the Legislature did not intend to lead to an absurdity, and will adopt the other interpretation."

I proceed first to consider the context. The title speaks of " the institution of vexatious legal proceedings " ; s. 1 speaks of a person having habitually and persistently " instituted vexatious legal proceedings "-and " no legal proceedings shall be instituted." Now I have no doubt that the word " institute " may be found in use in statutes, legal text-books, and legal parlance, in reference to criminal as well as to civil proceedings. But when it is used n reference to criminal" proceedings what does it denote ? It

denotes the commencement of the'proceedings. How, in criminal proceedings, does that commencement take place ? It is stated in Archbold's Criminal Pleading Evidence and Practice (24th ed.) at p. 92 : " The commencement of the prosecution is the preferring of the indictment when it is sent up without a preliminary inquiry; or the laying of the information; or, it would seem, the arrest of the accused, or the application for summons or warrant in respect of the offence." Is it reasonable to suppose that the Legislature, when by this Act it gave the High Court power by order to prevent a person who had habitually and persistently instituted civil proceedings in the High Court or any inferior Court without any reasonable ground from instituting legal proceedings in the High

(1) Reg. v. City of London Court [1892] 1 Q. B. at p. 290. VOL. I . 1915. D 2


c. A. Court or any other Court, intended that such a vexatious litigant, 1914 man or woman, should not if robbed or assaulted be entitled to

VEXATIOUS 8^ve the criminal wrong-doer in charge, or to apply to a magistrate AcTI°* ,s for a summons, without first going to a judge in chambers in .ACT) l o J O j

in re. London, or to a Divisional Court, and satisfying the judge or BOALBE, the Court that his proceeding is not an abuse of the process of the

Court ? But for the divergence of opinion in the present case, both Kennedy L.J. o r c >

in the Divisional Court and in this Court, I should have humbly ventured to think that the refusal of the institution of proceedings to obtain redress for a criminal wrong, however vexatiously litigious the applicant for that redress may have been, unless he first instituted an inquiry into the merits of his claim by civil proceedings in the High Court in London to get leave to institute the criminal proceedings—and this follows from the contentions of the learned Solicitor-General—was in itself sufficient to show that the construction which the appellant seeks to put upon " legal proceedings " in this statute was untenable. And in this connection it is not an unimportant consideration that in the case of indictable offences our law in the preliminary stage before the magistrate, or, if the matter goes before the grand jury, in their inquiry, has already given ample safeguards against the further prosecution of anything like a frivolous charge.

Passing from the use of the words " institute " and " institution " in the context, I think that on a well-known principle of construction the narrower meaning of Ihe words " legal proceedings" is entitled to preference. The enactment is one which even in regard to civil proceedings seriously abridges the right of the subject to such redress in the Courts of law. I do not presume for one moment to question the wisdom of the abridgment. But if it includes an abridgment of the rights of the subject in regard to redress for crimes committed in regard to his person or his property, one would, I venture to think, justly expect the Legislature, instead of using words of general import, to make it quite clear that criminal proceedings were intended to be included in the enactment. " Statutes which encroach on the rights of the subject whether as regards person or property, are similarly " (the learned author has in the preceding chapter been

1 K . B . KING'S BENCH DIVISION. 35

dealing with the construction of Penal Acts) " subject to a strict c. A. construction It is a recognised rule that they should be 19H interpreted, if possible, so as to respect such rights." (Maxwell VEXATIOUS on the Interpretation of Statutes, 5th ed. p. 461.) * / C T ^ S

For these reasons I am of opinion that the judgment of the in »•«. Divisional Court was right and ought to be affirmed. I lay no Bj^™B' . stress upon the language of s. 2, sub-s. 2: " This Act may be cited —— as the Vexatious Actions Act, 1896." In the first place, although the use of the word "actions" except in reference to civil proceedings is now obsolete, it is just possible that the parliamentary draftsman may have had in his mind the fact that in a passage in Bacon's Abridgment which was cited to us by counsel is to be found the statement that "actions are divided into criminal and civil." In the second place, in two recent cases in the House of Lords there have been expressions of opinion on the part of the Lord Chancellor and Lord Moulton against the use of its short title as an aid to the interpretation of a statute. Nor do I attach any value to the marginal note, " Power of Court to prohibit institution of action without leave." The marginal note forms no part of the statute. I have come to my conclusion by giving to the statute that which, in my humble judgment, is not only a natural interpretation of the words which I find in it, but one which, if due regard is paid to its subject-matter and its working, is most in accord with recognized principles of interpretation.

I now proceed to read the judgment of my brother Scrutton.

SCKUTTON J. In the case of Bernard Boaler on December 17, 1910, an order was made under an Act, the statutory short title of which is " The Vexatious Actions Act, 1896," that no legal proceedings should be instituted by Bernard Boaler in the High Court, or any other Court, unless he obtained the leave of the High Court or some judge thereof, and satisfied the Court or judge that such legal proceeding was not an abuse of the process of the Court, and that there was a prima facie ground for such proceeding. Mr. Boaler was much interested in the due observance of the company laws by others. He desired, after the order I have set out, to present a bill of indictment for an offence

D 2 2

36 KING'S BBNOH DIVISION. [1915]

c.A. against those laws to the grand jury at the Old Bailey, and was 1914 refused by direction of the Eecorder as he had not obtained the

VEXATIOUS leave of a judge of the High Court. He also desired on a sworn ^3TTIS inf° rmation to apply for a summons to a magistrate, and was

In re. refused on the same ground. A Divisional Court allowed h im to B/MLTOB' m ° v e to set aside or vary the order made under the Act of 1896

on the ground tha t it did no t prevent h is endeavouring to ini t ia te Scrutton J. D _ . . .

criminal proceedings,'but only his institution of civil proceedings. On the case coming before the Divisional Court the majority, Darling J. and Lush J., held that the Act and order were limited in their prohibition to civil proceedings; Bankes J. dissented, holding that the Act and order applied both to civil and criminal. proceedings. The Attorney-General appeals from this decision, and the Court has now to decide the true construction of the Act, quite apart from the question whether it has any sympathy with Mr. Boaler and his peculiar manifestations of detective energy.

One of the valuable rights of every subject of the King is to appeal to the King in his Courts if he alleges that a civil wrong has been done to him, or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But the language of any such statute should be jealously watched by the Courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension. It cannot be denied that on the meaning put on this statute by the Solicitor-General Mr. Boaler may be robbed or assaulted in a distant county, or a lady litigant, who frequently brings vexatious actions and is restrained under the Act, may suffer the gravest wrong a woman can suffer; an unsympathetic policeman may say "It's only Boaler, or Mrs. So-and-so," and decline to take action, and the restrained litigant may be unable to obtain a warrant, or get any redress, until he or she has satisfied a judge in London, either by affidavit or personal evidence, that a wrong has been done to him or her.

I approach the consideration of a statute which is said to have

1 K. B. KING'S BENCH DIVISION. - 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, 10*70 .

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 • KING'S BENCH DIVISION. [1915]

C A. private prosecutor's proceedings, but as the King's proceedings. 1914 Under those circumstances the language " institutes proceedings "

VEXATIOUS a>PPea<rs to me far more appropriate to civil than to criminal /AcTI01ls proceedings. Further, I find in the Act nothing about appeals,

ACT, loyO)

Iii re. as I should expect to do if it related to criminal proceedings. An BOALBR, order restraining the vexatious litigant from taking civil pro-

— ceedings, or allowing him to bring one civil proceeding, may be appealed to the House of Lords. An order restraining him from taking criminal proceedings, or allowing, or refusing to allow him to initiate one criminal proceeding, would, I think, be an order in a criminal matter which by the Judicature Act is not subject to an appeal, and if so an order refusing to allow a man or woman to endeavour to initiate proceedings in the criminal Courts in respect of a wrong alleged to be done to himself or herself would be made by a judge in the unreportable privacy of chambers without appeal. Parliament may enact this, as they may enact anything else, but I should expect words showing a clear intention so seriously to interfere with the liberties of the subject. The Court has then general words which in one respect, " legal proceedings," cover both civil and criminal proceedings ; in another respect " institute " is far more applicable to civil than criminal proceedings. Eor what reasons may the Court restrict these general words ? The object of the Courts is, from the words used, construed in reference to the subject-matter in which they are used, to get at the intention of the Legislature and give effect to it. When the Legislature has used general words capable of a larger and a narrower meaning, those words may be restricted by innumerable presumptions all designed to give effect to the reasonable intent of the Legislature. A presumption against any alteration of the law beyond the specific object of the Act; a presumption against intending an excess of jurisdiction, or a violation of international law; a presumption against intending what is inconvenient or unreasonable, against intending injustice or absurdity ; a strict construction of penal laws, or statutes encroaching on rights, especially the liberties of the subject, or imposing burdens; all are cases where general words have been cut down to a narrower meaning in endeavouring to seek the intention of the Legislature, not from


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 yEXATI0US

Appeal shall have jurisdiction to determine appeals from any A011™-ACT, loyOj

judgment of the High Court of Justice, except certain specified in re. exceptions, which do not include appeals from orders discharging B j * L ^ R ' persons from custody under a writ of habeas corpus, yet the House ' — of Lords in Cox v. Hakes (1) cut down these wide general words and refused an appeal from such an order on the ground, amongst others, of the great change that would be made in the liberties of the subject by giving the words their literal meaning, and the consequences that would follow such a change in the law. When therf were two possible constructions of general words, one of which took away the respondent's property without compensation, Lord Davey said in Commissioners of Public Works v. Logan (2) : " Such an intention should not be imputed to the Legislature unless it be expressed in unequivocal terms. This principle has frequently been recognized by the Courts of this country as a canon of construction." I think one of the principles of limitation is correctly stated in Maxwell on the Interpretation of Statutes, 5th ed. at p. 461: " It is presumed where the objects of the Act do not obviously imply such an intention that the Legislature does not desire to confiscate the property, or to encroach upon the rights of persons ; and it is therefore expected that if such be its intention it will manifest it plainly, if not in express words, at least by clear implication, and beyond reasonable doubt." In the case of this statute the Legislature clearly intends to interfere with some rights of persons, and uses words capable of extension to rights of litigation in criminal matters, but in my opinion more suitable to the subject-matter of rights of litigation in civil matters only. In my view, looking at the enacting part of the statute only, the presumption against interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to that meaning which effects the least interference with those rights. Two other matters have also influenced me in coming to this conclusion. I am influenced by consideration of the difficulty and evil which were in existence at the time this Act

(1) 15 App. Cas. 506. (2) [1903] A. 0. 355, at p. 363.


c. A. waa passed, and which I have no doubt it was intended to remedy. 19H The first order made under the Act of 1896 was made in January,

VEXATIOUS 1897—see In re Chaffers (1)—against one Chaffers who had ^ " 1 8 % bnmght, before the passing of the Act, forty-seven civil actions

in re. against the Speaker, the Archbishop of Canterbury, the Lord J«^E Chancellor, and numerous other high functionaries, without

0 —* _ success, and without payment of costs. He had not extended his ScruttonJ. ' .

mischievous activity to criminal proceedings. I have no doubt that this was the grievance that Parliament was remedying. Secondly, s. 2 of the Act contains a sub-section : " This Act may be cited as the Vexatious Actions Act, 1896." This has certainly in my mind supported the conclusion to which I have come. I am aware that two members of the House of Lords have as dicta said that no attention should be paid to the short title ; there are similar dicta with regard to the full title, but I think the law is correctly stated by Lord Macnaghten in Fenton v. Thorley & Co. (2): " It has been held that you cannot resort to the title of an Act for the purpose of construing its provisions. Still, as was said by a very sound and careful judge, ' the title of an Act of Parliament is no part of the law, but it may tend to shew the object of the Legislature.' Those were the words of Wight-. man J. in Johnson v. Upham (3), and Chitty J. observed in East and West India Docks v. Shaw, Savill and Albion Co. (4) that the title of an Act may be referred to for the purpose of ascertaining generally the scope of the Act. Surely, if such a reference is ever permitted, it must be permissible in a case like this." Maxwell on the Interpretation of Statutes, 5th ed. p. 67, summarizes the authorities thus : " It is now settled law that the title of a statute . . . . may be referred to for the purpose of ascertaining its general scope." I agree that the Court should give less importance to the title than to the enacting part, and less to the short title than to the full title, for the short title being a label, accuracy may be sacrificed to brevity ; but I do not understand on what principle of construction I am not to look at the words of the Act itself, to help me to understand its scope in order to interpret the words Parliament has used by the circumstances

(1) (1897) 76 L. T. 351. (2) (1859) 2 E . & B . 250, at p. 263. (2) [1903] A. C. at p. 447. (4) (1888) 39 Ch. D. at p. 531.


in respect of which they were legislating. It is by no means c. A. conclusive, but it is striking that if they were intending to deal im with criminal proceedings they should call their Act the Vexatious VEXATIOUS Actions Act. I respectfully decline to believe that they did so _^T I^g because they were aware that Bacon's Abridgment speaks of In rs-criminal actions, and I am fairly confident that for the last j , t ^ B ' century the term has never been used of criminal proceedings & ^ ^ } until counsel suggested such a use in this case. The anonymous author of the marginal note thought the correct summary of s. 1 was " Power of Court to prohibit institution of action without leave," but this is not part of the statute, and I pay no attention to it in forming my opinion. I refer also in support of the conclusion to which I have come to the judgment of Lush J., with which in general I concur. But the broad general ground on which I have formed my opinion is this: I find general words used in the Act capable of two meanings, a wider and a narrower one. On the whole I think the language is more suited to the narrower than the wider meaning. The narrower meaning will affect the liberties of the subject to some extent; the wider meaning will most seriously affect the liberties of the subject in a matter, his personal liberty and safety, which I see no reason in the Act to believe was in the contemplation of the Legislature. I decline to make this more serious interference with the liberty of the subject, unless the Legislature uses language clear enough to convince me that that was its intention, and I think ample meaning is provided for its words, and ample remedy is provided for the grievance in respect of which Parliament was legislating by putting the narrower construction on the general words it has used.

In my opinion the appeal fails and should be dismissed with costs.

Appeal dismissed.

Solicitor for appellant : Solicitor to the Treasury. W. J. B.

[1915]-1-K.B.-21

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