Harvey v Gaskin & Anor

Permission to appeal against strike-out, a civil restraint order and summary costs assessment may be refused where the proposed claim has no real prospect of success and the restraint order addresses persistent, meritless relitigation. The Court of Appeal’s role is limited: it will not interfere with the first-instance judge’s broad discretion unless that discretion was exercised outside its proper ambit. New allegations and evidence cannot ordinarily enlarge the proceedings for the first time on appeal. A civil restraint order does not necessarily prevent an application for permission to issue a properly formulated claim falling within its terms. The possible existence of new material does not itself justify setting the order aside. Permission to appeal against costs alone is exceptional.

The claimant had pursued a prolonged dispute arising from water leaking from the defendants’ flat into his. He brought successive proceedings alleging, among other matters, negligence, trespass, malicious falsehood and libel. Earlier claims and applications had been struck out or otherwise disposed of.

In the present High Court proceedings, the claim form alleged malicious libel and malicious falsehood arising from minutes and a recording of a management-company meeting. HHJ Rose struck out the claim, made a civil restraint order, and ordered indemnity costs, later summarily assessed at £13,000. The claimant sought permission to appeal and permission to adduce further evidence. The central issues were whether the claim had any real prospect of success, whether the restraint order should be disturbed, and whether permission should be granted against the costs assessment.

1. Permission to appeal against strike-out refused. The Court of Appeal’s function was limited. It would not interfere with the first-instance judge’s discretion unless it had been exercised outside the wide proper ambit. On the material before the court, the claim in libel and malicious falsehood disclosed no real prospect of success. The claimant’s proposed new allegations concerned different matters and could not properly be introduced for the first time in the Court of Appeal.
2. Civil restraint order upheld. The order was justified by the claimant’s repeated litigation concerning the original water-ingress dispute and related matters. The fact that he might have obtained new material, particularly concerning the sale of the property, did not justify interference. The order’s terms did not prevent an application for permission to bring a properly formulated claim concerning the sale, if such a claim existed.
3. The court also observed that, after taking appropriate legal advice, the claimant could have pursued a claim against the Gaskins under the rule in Rylands v Fletcher. It was, however, now too late to permit litigation of this kind.
4. Costs challenge rejected. The claimant had notice of the summary-assessment hearing but did not attend. The sum of about £13,000 was not inappropriate given the scale of the litigation, and permission to appeal solely against a costs order was not granted.
5. The application for permission to appeal was refused in its entirety.

• Court of Appeal (Civil Division): On 9 March 2006 permission to appeal was refused, including in relation to the strike-out, civil restraint order and costs assessment.
• High Court, Queen’s Bench Division: On 15 July 2005 HHJ Rose struck out the claim, made a civil restraint order and ordered indemnity costs. The costs were summarily assessed at about £13,000 on 26 July 2005.