Judgment Approved by the court for handing down.
Solicitor General v Millinder
to by Mr Whitgrave in his Affidavit. The correspondence sent to Mr Justice Fancourt
also refers to matters relating to the underlying litigation, including references to
Middlesbrough’s solicitors, Womble Bond Dickinson (UK) LLP, its general counsel
Mr Robin Bloom, and Mr Hannon, the liquidator of the two companies.
63.
There is no other plausible candidate who might have sent the correspondence and, as
mentioned earlier in this judgment, Mr Millinder had made it clear from the outset
that he had no intention of complying with the section 42 order. Finally, when he was
expressly asked by me at the hearing whether he sent the emails, (after having been
reminded of his right not to incriminate himself), Mr Millinder did not deny it. Whilst
he did not expressly admit it either, he did say that he had “done nothing wrong”
because the section 42 order was void, and he contended that he was not obliged to
comply with a void order.
64.
The Court was therefore satisfied beyond all reasonable doubt that Mr Millinder sent
each of the fifteen emails, and that these were deliberate, contumacious breaches of
the terms of the section 42 order.
65.
Mr Millinder’s sole excuse for these acts of deliberate disobedience to a court order
was that the section 42 order was a nullity, as the Divisional Court acted ultra vires in
making it. He submitted that the Divisional Court only had power to make such an
order under section 42 when the defendant had been issuing vexatious claims and
applications or otherwise abusing the process of the court. In his skeleton argument
for the hearing, supported by his earlier skeleton arguments, witness statements and
“reports” (all of which are in the voluminous supplementary bundle) Mr Millinder
contended that the various sets of proceedings he had brought were designed to
“remove proven fraudulent liabilities in insolvency proceedings” and were therefore
not vexatious.
66.
The short answer is that the Divisional Court had the power under statute to make the
order, and it did so after a hearing in which the burden of proof was on the Attorney
General to prove that Mr Millinder was a vexatious litigant, and that burden was
discharged. On that occasion, as he accepted at the time (see my judgment in the
section 42 proceedings) Mr Millinder was given a full and fair opportunity to explain
why his prior conduct was not vexatious. He argued his case at some length, and the
Court ruled against him for the reasons set out in the judgments that were handed
down in the section 42 proceedings. It is not open to Mr Millinder to re-litigate that
issue, which has already been conclusively determined against him. It is difficult to
think of anyone who more aptly fits the description of a vexatious litigant than Mr
Millinder.
67.
Moreover, Mr Millinder was refused permission to appeal against the section 42
order. There appears to be a striking similarity between the arguments that Mr
Millinder has put forward in answer to the contempt application and those in the
grounds of appeal to which Lord Justice William Davis alluded. The Court of Appeal
has held that none of those grounds is arguable with a real prospect of success.
68.
As Mr Hays submitted, once the section 42 order was made and Mr Millinder had
notice of it, it was enforceable against him. It is no answer to an application for
contempt based on breaches of a court order to argue that the order should never have
been made in the first place; the remedy is to appeal. In this case, Mr Millinder has
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