Foenander v Foenander

A civil restraint order may be made where a party persistently pursues applications which have no realistic prospect of success and waste court resources. It is distinct from a civil proceedings order under section 42 of the Supreme Court Act 1981: it is confined to the relevant proceedings and does not require the Attorney General’s intervention.

The court may waive formal notice requirements where the affected party understood the application and suffered no unfairness. A judge need not read every document in a voluminous file, provided the judge considers the information necessary for the decision. The slip rule may amend an order to give effect to the court’s intention, including by clarifying that an existing outstanding application is covered.

The applicant sought permission to appeal against orders made by the President of the Family Division and Coleridge J in long-running matrimonial proceedings. The President had refused to reopen a 1994 ancillary-relief order and made a two-year civil restraint order restricting further applications concerning the former marriage, while excluding bankruptcy and enforcement matters and appeals to the Court of Appeal.

Coleridge J subsequently amended the order under rule 40.12 of the Civil Proceedings Rules 1998 to clarify that pursuing existing outstanding applications was prohibited, and dismissed the applicant’s application for permission to appeal against a costs judge’s order. The central issues were the validity and scope of the civil restraint order, procedural fairness, the use of the slip rule, and the jurisdiction to challenge the costs-judge permission decision.

1. Permission refused. The applicant had no realistic prospect of successfully challenging either order. The continuing attempt to reopen the 1994 ancillary-relief order was pointless and a waste of court resources. The civil restraint order was therefore justified on the material before the President.
2. A civil restraint order is confined to proceedings currently on foot and restricts further applications in those proceedings. It differs from a civil proceedings order under section 42 of the Supreme Court Act 1981, which applies to proceedings generally and requires the Attorney General’s intervention. Such orders are rare and must respect the ordinary right of access to the courts. The order properly excluded bankruptcy proceedings, enforcement proceedings and the applicant’s defence to enforcement applications.
3. A civil restraint order is not semi-criminal. The purpose of notice is to tell the affected party what is sought and allow preparation. Strict procedural requirements as to notice and service may be waived in an appropriate case where no unfairness is caused. The applicant knew the relief sought, had ample time to prepare and was not taken by surprise.
4. A judge is not required to pre-read every document in a voluminous case file. A decision is vitiated only if the failure to read material documents means that information necessary to the decision was not taken into account and the judgment is materially defective. The President had sufficient material and had listened fairly to the applicant’s case.
5. The phrase making any further application was ambiguous when read without the President’s judgment. Coleridge J was entitled under rule 40.12 of the Civil Proceedings Rules 1998 to amend the order to give effect to the President’s intention that all relevant applications, including pending applications, should be covered. The costs-judge permission decision was final and no appeal lay to the Court of Appeal.

• Court of Appeal (Civil Division): Permission to appeal against the President of the Family Division’s order of 24 March 2004 and Coleridge J’s order of 22 June 2004 was refused. The court also held that no appeal lay against the dismissal of permission to appeal from the costs judge’s order.