The Claimant was subject to civil proceedings orders under section 42(1)(a) of the Supreme Court Act 1981. As a result he was prohibited from instituting any civil proceedings in any court without leave of the High Court. On 22 December 2007 the Claimants issued an application for leave, pursuant to section 42(3) of the 1981 Act, to institute an application for permission to apply for judicial review of Schedule 1A paragraph 1 of the definition of “restraint order” and paragraphs 8(1) – (3) of the Civil Proceedings Fees (Amendment) (No. 2) Order 2007 (SI 2007/2176). On 8 April 2008 Cranston J refused permission to apply for judicial review. The Claimant made a further application under section 42 of the 1981 Act for permission to apply to set aside the April 2008 Order, or alternatively leave to apply for permission to appeal the April 2008 Order. The Claimant submitted that leave should be granted because Cranston J was disqualified from hearing the application because of his former position as Solicitor General and a colleague in Government of Mr Jack Straw MP, at that time Home Secretary or Foreign Secretary, but now Secretary of State for Justice and Lord Chancellor, and the minister responsible for laying the regulations at issue in the claimants’ substantive judicial review case. They submit that in the language of the well-known test of bias, a fair-minded and informed observer would conclude that there was a real possibility or a real danger of bias in Cranston J dealing with this application.
Held: Application refused. The application that Cranston J’s order be put aside was misconceived. The Claimant had not identified anything said or any statement by Cranston J while a minister, or indeed while an MP, indicating the promotion of the imposition of court fees on vexatious litigants, or indeed on any other category of litigant. Cranston J’s position was not unique. There are several examples of Scottish law officers becoming members of the Court of Session: Lord Hardie, Lord Rodger. In England Lord Simon was a government minister and Solicitor General before his appointment as President of the Probate, Divorce and Admiralty Division.Similarly, Slesser and Ungoed-Thomas JJ served as Solicitors-General, and Lord Hanworth MR and Somerville LJ had been Attorneys General.