Connah v Plymouth Hospitals NHS Trust

An extended civil restraint order requires persistent claims or applications which are totally without merit. Its higher threshold reflects its wider effect, which may restrict related litigation beyond the proceedings in which it is made. The jurisdiction is directed principally at litigants who pursue meritless matters across more than one set of proceedings.

A person affected should ordinarily receive notice and sufficient time to respond. An interim order may be made without notice only exceptionally. Requests for court documents cannot support an order unless the evidence establishes that they are applications which are totally without merit.

The claimant brought a clinical negligence claim concerning his wife's death. Following numerous applications arising principally from disputed disclosure, the county court made a restraint order under its inherent jurisdiction. It later struck out the claim and made an extended civil restraint order on its own initiative, without notice or representations from either party.

The claimant appealed against three orders. He abandoned his challenge to the original restraint order, while the NHS trust accepted that his attempted appeal against that order had wrongly been struck out. The principal issue was whether the later extended civil restraint order was procedurally and substantively justified.

Appeal allowed in part. Lord Justice Dyson gave the judgment of the court. Lady Justice Arden and Sir Andrew Morritt agreed.

1. The original restraint order did not require the claimant to obtain permission under that same order before seeking permission to appeal against it. Such an unusual restriction would have required express language. The second order, which struck out his attempted appeal for failure to comply with the restraint procedure, was therefore set aside.

2. The extended civil restraint order was wrongly made without notice. Following The Queen on the application of Ranbir Kumar v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990, a person affected should ordinarily receive notice and sufficient time to prepare a response. Although rule 3.3(4) of the Civil Procedure Rules 1998 permits an interim order on the court's own initiative, proceeding without representations requires an exceptional situation. There was no urgency or other justification.

3. The material before the judge did not establish persistent claims or applications which were totally without merit. The recent letters and telephone calls merely requested a court letter and transcripts for use in proceedings before the European Court of Human Rights. Neither those requests nor the Strasbourg application had been shown to be totally without merit.

4. The threshold for an extended civil restraint order is higher than for a limited order because its effect is more extensive. A limited order restrains further applications in the existing proceedings. An extended order can also restrain claims and applications in other proceedings which relate, even loosely, to the original proceedings. The extended jurisdiction is directed at a litigant who pursues meritless claims or applications in more than one set of proceedings. Nothing suggested that the claimant was likely to commence such related domestic proceedings.

5. The extended order superseded and discharged the earlier restraint order because both covered applications in the existing proceedings. No limited order was substituted. The underlying claim had been struck out, the claimant did not intend to appeal against that result, and his subsequent conduct did not suggest that he would take further steps in those proceedings.

The appeal against the first order was dismissed. The appeals against the second and third orders were allowed. There was no order as to costs, save for assessment of the claimant's costs.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1616, dismissed the challenge to the original restraint order and allowed the appeals against the orders striking out the attempted appeal and imposing an extended civil restraint order.
2. Torquay and Newton Abbot County Court: His Honour Judge Overend made the original restraint order on 31 October 2003, struck out the attempted appeal on 1 December 2003, and made an extended civil restraint order on 20 January 2006.