Mahajan v Department of Constitutional Affairs

A general civil restraint order may be made in an extreme case of persistent and vexatious litigation where necessary to protect court processes and other litigants. The order operates as a filter rather than extinguishing access to justice: future applications and proceedings may be screened on paper and refused finally. The jurisdiction extends to the Court of Appeal, the High Court and county courts. Under the Human Rights Act 1998, judicial acts cannot generally be challenged by freestanding civil claims; the available routes are appeal, judicial review or a prescribed forum. Judicial and court-staff conduct must be challenged through proper procedural routes. Article 6 permits reasonable regulation of court processes to prevent abuse, provided access to the courts is not extinguished.

The Department of Constitutional Affairs applied for a general civil restraint order against Ashok Mahajan for two years. The application arose while Mr Mahajan sought permission to appeal against McKinnon J’s dismissal on 28 April 2004 of his application to set aside Master Tennant’s strike-out of Claim 0600. That claim alleged breaches of human rights arising from the conduct of court staff. A further claim, Claim 1253, challenged numerous judicial orders and administrative acts. The central issues were whether the Court of Appeal had jurisdiction to make a general order extending across the appellate, High Court and county court jurisdictions, and whether Mr Mahajan’s litigation justified that exceptional protection.

The Court of Appeal granted the Department’s application. Brooke LJ gave the judgment, and Dyson LJ agreed.

1. Jurisdiction. The court had jurisdiction to protect its own process from abuse and, when exercising powers available to the court below, to protect lower-court processes and other litigants. The jurisdiction was not dependent on a new procedural rule.
2. Threshold and safeguard. A general civil restraint order is reserved for the particularly rare case where a litigant’s conduct creates an extreme nuisance through persistent and vexatious litigation. The relevant concerns included protection of court processes, potential defendants and other litigants from frivolous claims and wasted resources. The order did not extinguish access to justice. It imposed a written, paper-based permission filter, with refusal final unless the named judge allowed a further application.
3. Scope. The court departed from the limitation previously suggested in Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113, under which a High Court order might not extend to county courts. Following Ebert v Venvil [2000] Ch 484, there was no principled reason why an sufficiently extreme case could not justify an order covering county courts as well as the High Court. The Court of Appeal could make such an order on appeal.
4. Underlying claims. Section 9 of the Human Rights Act 1998 confined proceedings concerning judicial acts to an appeal, judicial review or a prescribed forum. Superior-court judges also enjoyed immunity from damages liability for acts within jurisdiction or honestly believed to be within jurisdiction. Section 2(5) of the Crown Proceedings Act 1947 excluded Crown liability for judicial responsibilities and process, subject only to the limited exception in section 9(3) of the 1998 Act and Article 5(5) of the European Convention on Human Rights.
5. Convention and procedural points. Article 14 was not freestanding, the alleged conduct could not reach the Article 3 threshold, and Article 6 permitted regulation of court affairs to protect the process and other parties. Complaints about listing, adjournments and procedural directions had to be raised before the appropriate court or by appeal, rather than recast as civil claims against staff.
6. The order restrained applications and steps in the Court of Appeal, High Court and county courts for two years, required prior written permission, dismissed unauthorised steps and stayed existing proceedings unless permission was obtained. It also prohibited rude or abusive communications with court staff. The respondent received £4,000 on account of costs, with the balance to detailed assessment.

• Court of Appeal (Civil Division) — In [2004] EWCA Civ 946, the court granted the Department of Constitutional Affairs’ application and made a general civil restraint order covering the Court of Appeal, High Court and county courts.
• High Court, Queen’s Bench Division — McKinnon J dismissed on 28 April 2004 Mr Mahajan’s application to set aside Master Tennant’s strike-out order concerning Claim 0600. No citation for that decision is stated in the judgment.
• High Court, Queen’s Bench Division — Master Tennant struck out Claim 0600 on 9 March 2004 as an abuse of process under CPR Part 3.