Bhamjee v Forsdick & Ors (No 2)

Every court has inherent power to protect its processes and scarce resources from persistent applications or proceedings which are totally devoid of merit. Any restraint on access to the court must pursue a legitimate aim, preserve the essence of the right of access and remain proportionate to the identified abuse.

The appropriate response is graduated. It may progress from striking out a meritless claim, through a civil restraint order confined to existing proceedings, to an extended or general civil restraint order. More restrictive orders should ordinarily last no longer than two years and preserve a written procedure for seeking permission. Persistent abuse despite earlier restraints may ultimately justify making later refusals of permission final.

Park J had made an order concerning three actions brought by the claimant. In Bhamjee v Forsdick (No 1) [2003] EWCA Civ 799, the Court of Appeal dismissed three applications for permission to appeal from that order and directed a three-judge hearing to consider measures controlling the claimant's future litigation.

The five respondents, barristers previously instructed for opposing parties, then applied for an extended civil restraint order. The claimant had repeatedly made meritless applications and threatened further proceedings against barristers and solicitors. The court considered the scope of its inherent jurisdiction, its compatibility with the right of access to a court, the graduated remedies available against vexatious litigation and whether an extended order was justified.

Application granted unanimously. The court gave a single judgment and made a two-year extended civil restraint order.

1. Every court possesses inherent power to prevent abuse of its process and to maintain its character as a court of justice. That power extends to persistent applications and proceedings which are totally devoid of merit and which divert scarce judicial resources from genuine disputes. The categories of abuse remain open, but the jurisdiction must be exercised carefully.

2. A restriction on access to a court is permissible where it pursues the legitimate aim of protecting the administration of justice, does not extinguish the essence of the right of access and is reasonably proportionate. A litigant who persistently makes meritless applications may be required to seek permission through a procedure conducted entirely in writing.

3. The court prescribed a graduated response. Under the Civil Procedure Rules 1998, Rules 3.3 and 3.4, a claim or application may be struck out as totally devoid of merit. A civil restraint order may prohibit further applications in the same proceedings without permission. An extended civil restraint order may cover related proceedings in identified courts where the litigant displays persistent vexatiousness. It should not exceed two years on any one occasion.

4. The extended jurisdiction approved in Ebert v Venvil [2000] Ch 484 permitted restraint of manifestly threatened proceedings as well as existing proceedings. An extended order may be made by the Court of Appeal or a High Court judge. At county court level it should be made only by a designated civil judge or appointed deputy.

5. In exceptionally persistent cases, a High Court judge or designated civil judge may make a general civil restraint order protecting the processes of the relevant court. If abuse continues despite an extended or general order, the court may ultimately direct that a later refusal of permission is final. These are remedies of last resort and must remain proportionate.

6. The claimant's repeated meritless litigation, threatened claims against further lawyers and refusal to engage with the reasons previously given established persistent vexatiousness. He was restrained for two years from taking specified steps against the respondents and their representatives without written permission. Permission applications were to be determined on paper, with the limited review procedure specified in the order.

• Court of Appeal (Civil Division): In Bhamjee v Forsdick & Ors (No 2) [2003] EWCA Civ 1113, the court gave guidance on civil restraint orders and granted the respondents a two-year extended civil restraint order.
• Court of Appeal (Civil Division): In Bhamjee v Forsdick (No 1) [2003] EWCA Civ 799, the court dismissed three applications for permission to appeal and directed that a three-judge court consider appropriate protective relief.
• High Court, Chancery Division: Park J made an order on 27 January 2003 concerning three actions brought by the claimant. No citation is stated in the judgment.