London Borough of Enfield v Sivanandan

A civil restraint order requires persistent issue of claims or applications that are totally without merit. The threshold concerns past conduct, while the jurisdiction protects court resources prospectively. Meeting the threshold does not make an order automatic. The court retains a discretion and must consider whether the restriction is proportionate, given its substantial interference with access to the courts. The assessment may take account of unusual features in the underlying dispute, including substantiated complaints and conduct by the opposing party that contributed to repeated litigation. Finality remains a cardinal principle: dismissal for abuse of process forecloses relitigation of matters raised, or which ought to have been raised, in the original proceedings. A later change in the law does not necessarily reopen those matters.

The respondent had pursued employment-related claims concerning her dismissal. Her first Employment Tribunal claim was struck out for her conduct in September 2000. A later High Court breach of contract claim was struck out by the Court of Appeal in [2005] EWCA Civ 10, and a second Employment Tribunal claim was struck out as an abuse of process. Two further claims were withdrawn.

After refusing the respondent permission to appeal, the Court of Appeal considered the applicant local authority’s application for an extended civil restraint order covering proceedings in any court, including an Employment Tribunal. The respondent also sought the recusal of Sir Peter Gibson because he had sat in the earlier Court of Appeal proceedings. The central questions were whether the threshold for such an order was met and whether making it would be proportionate.

The application for an extended civil restraint order was refused unanimously.

1. Recusal. A litigant could not handpick the composition of the court. Recusal was required where the judge had a direct interest or an objective and informed observer would fear that the judge might be partial. A previous decision against the litigant was not, without more, evidence of partiality. Sir Peter Gibson therefore remained on the court.
2. Jurisdiction and threshold. The court had power under CPR 3.11 and CPR 3.4, together with the relevant practice direction, to make the order. The qualifying condition was persistent issue of claims or applications which were totally without merit. The condition looked to past conduct, while the purpose of the jurisdiction was prospective protection of court resources. Peach Grey and Co v Sommers [1995] ICR 549 supported extending the protection to any court, including an Employment Tribunal. Bhamjee v Forsdick [2004] 1 WLR 88 supported the protective purpose of the jurisdiction.
3. Application to the litigation history. The first Employment Tribunal claim and the County Court proceedings could not fairly be treated as wholly meritless. By contrast, the later High Court claim and the second, third and fourth Employment Tribunal claims were properly characterised as without merit, although the last two had been withdrawn.
4. Finality and later legal developments. The abuse-of-process dismissal of the first Employment Tribunal claim was terminal in litigation terms. It foreclosed relitigation of matters raised, or which ought to have been raised, in those proceedings. The decision in Relaxion Group v Rhys-Harper [2003] UKHL 33 did not cure the lack of merit in a later claim which could have been brought earlier.
5. Discretion and proportionality. Persistent meritless claims were necessary but not always sufficient. The order substantially interfered with access to the courts and had to be proportionate. Sedley LJ treated the independent substantiation of some original complaints and Enfield’s prolonged refusal to accept the binding finding that it was the employer as significant. Gibson LJ concurred in the result, while deriving no assistance from the internal report. The pending Employment Appeal Tribunal appeal was not affected, and the application was refused.

• Court of Appeal (Civil Division): Following refusal of permission to appeal, the court considered the application for an extended civil restraint order and declined to make it.
• Employment Appeal Tribunal: The first Employment Tribunal claim was struck out for the respondent’s conduct. The second claim was struck out as an abuse of process. The third and fourth claims were withdrawn; an appeal concerning the remaining proceedings was left to proceed on its merits.
• Court of Appeal (Civil Division): In [2005] EWCA Civ 10, the court allowed the local authority’s further appeal and struck out the High Court breach of contract claim.
• High Court: The respondent’s breach of contract claim was partially upheld against a strike-out application before Master Leslie, but the subsequent appeal before Sir Edwin Jowitt failed before the Court of Appeal struck out the claim.