Carroll v Kynaston

A general civil restraint order may be imposed where, despite an extended civil restraint order, a litigant persists in making applications that are totally without merit. The court should assess the litigant’s conduct since the extended order was made. Repeated meritless applications, breaches of the prescribed permission procedure and litigation extending to connected third parties may show that the existing order no longer provides sufficient protection. A general order is part of a graduated process for protecting the court, other litigants and the parties from disproportionate and sterile litigation. Claims may also be stayed permanently where the parties’ litigation has become oppressive and there is no proper reason for it to continue.

The defendant applied in three related actions for a general civil restraint order under Civil Procedure Rules 1998, Part 3.11 and Practice Direction 3C, a permanent stay of the claims, and costs. The claimant had been subject to an extended civil restraint order made on 20 November 2003, regulating applications and other steps in a series of connected proceedings.

The parties’ dispute had generated extensive litigation and repeated applications. The defendant alleged that the claimant had breached the extended order, continued to make meritless applications, and sought to involve third parties connected with the defendant. Both parties ultimately accepted that the three claims should be stayed permanently. The central issue was whether the claimant’s post-order conduct justified the further, general restraint.

1. Permanent stay. The three claims were permanently stayed. Given the unhappy history of the litigation and the parties’ expressed wish that it should end, a permanent stay was in the interests of justice.

2. Applicable framework. Part 3.11 of the Civil Procedure Rules 1998 and Practice Direction 3C provide a graduated system of limited, extended and general civil restraint orders. An extended order may be made where a party persistently issues claims or makes applications that are totally without merit. A general order may be made where, despite an extended order, the party persists in such conduct: (2003) EWCA Civ 1113.

3. In deciding whether a general order is required, the court should focus on the claimant’s conduct since the extended order was imposed. Earlier conduct may be treated as sufficient to justify the existing extended order, but should not ordinarily be re-litigated when deciding whether a general order is now necessary.

4. The claimant had breached the extended order by making or pursuing applications without complying with its notice and permission procedure. Some steps concerning the Court of Appeal were outside the order. Other steps, including applications concerning costs in proceedings covered by the order and formal pre-action steps against connected solicitors, fell within its scope. The order did not clearly cover proceedings against third parties who were not the defendant or her legal or other representatives.

5. The court was satisfied that the claimant had made numerous applications of little or no merit, had breached the extended order, and had extended his litigation campaign to third parties. The uncertainty about whether such third-party proceedings were caught by the extended order itself illustrated why a general order was required. The power in the High Court extends to proceedings in the County Court: (2004) EWCA Civ 946.

6. A general civil restraint order was therefore imposed for two years from the date of judgment, in similar terms to the extended order and applying whether the claimant acted personally or through a servant or agent. The defendant was awarded £600 on summary assessment, allowing for duplication in the preparation of the application.