Forrester Ketley & Co v Brent

A civil restraint order may be maintained where the history of applications and appeals shows repeated proceedings that are wholly without merit and likely to continue unless restrained. The order may protect the opposing party from conduct that is inappropriate and disproportionate, irrespective of the underlying merits of the claim or counterclaim. A complaint about notice may be answered by giving the litigant a full opportunity to make submissions before the order is maintained. Medical ill health does not justify discharge where the evidence does not show incapacity to conduct proceedings. A civil restraint order made by the Court of Appeal cannot prevent an application to the European Court of Human Rights.

The appellant appealed from proceedings in the High Court of Justice before Mr Justice Jacob and Mr Justice Laddie. The Court of Appeal had dismissed his appeals and made a civil restraint order on 1 March 2005. The appellant then made extensive representations seeking discharge of the order and other relief. He challenged the adequacy of notice, the amendment of the order, the constitution of the court, the effect of his medical condition, reliance on the Human Rights Act 1998, and the documents considered by the court. The central issue was whether those representations justified discharging or varying the order.

Disposition and reasoning

1. Outcome. This was a judgment of the court. The representations disclosed no basis for discharging the civil restraint order or granting additional relief. The appeal was dismissed and the order of 1 March 2005 confirmed.
2. Judicial allocation and prior merits decision. A litigant cannot choose the judges who determine an appeal. The appeals had already been disposed of on their merits, and allegations of a judicial cabal were unjustified. The appellant’s extensive history of applications and appeals supported the restraint order.
3. Notice and amendment. Any concern about inadequate notice of the possible order was met by the opportunity given to the appellant to make all submissions against it. The written amendment to the order corrected its wording so that it reflected the intention expressed in open court.
4. Justification for restraint. The history of proceedings, together with the likelihood that the appellant would continue the same course unless restrained, made the conduct inappropriate and disproportionate. That conclusion was unaffected by whatever merits the underlying claim and counterclaim might have had. The appellant’s lengthy submissions reinforced, rather than weakened, the need for protection.
5. Other grounds. The medical reports did not suggest that the appellant was incapable of dealing with the proceedings, and the length and contents of his submissions reinforced that conclusion. Reliance on the Human Rights Act 1998 disclosed no basis for relief. The order could not prevent an application to the European Court of Human Rights.
6. Final order. The appellant was restrained until 1 March 2007 or further order from making applications or taking steps in any court without permission in relation to the specified subject matter. Permission applications were to be made in writing to Mr Justice Pumfrey. The appellant was ordered to pay costs summarily assessed at £18,400.

1. Court of Appeal (Civil Division): Having previously dismissed the appeals and made a civil restraint order, the court rejected the appellant’s representations, confirmed the order and dismissed the appeal. [2005] EWCA Civ 562
2. High Court of Justice: The appeals arose from proceedings before Mr Justice Jacob and Mr Justice Laddie. No lower-court citation or outcome is stated.