Kumar, R (on the application of) v Secretary of State for Constitutional Affairs

A general civil restraint order could not be made under the then applicable CPR regime unless an extended civil restraint order already existed. The court should not ordinarily invoke its inherent jurisdiction to bypass a comprehensive rule-based scheme for civil restraint orders.

An extended civil restraint order may be made in Administrative Court proceedings. The court may examine the prior litigation history to decide whether claims or applications were totally without merit, even if earlier orders did not expressly say so. The litigant must, however, receive fair notice and a proper opportunity to resist the order. Where that procedure has been unfair, the order must be set aside, although an appellate court may substitute a properly justified extended order after a fair hearing.

The claimant, acting in person, had brought a series of actions and judicial review claims concerning immigration matters and alleged defects in court administration. In the present judicial review proceedings, Moses J refused permission and made a general civil restraint order for two years.

The claimant appealed against the restraint order and sought reconsideration of the refusal of permission to appeal on the remaining issues. The appeal raised whether the CPR or the inherent jurisdiction permitted the general order, whether an extended order could instead have been made, and whether the procedure before Moses J was fair.

The order under appeal was made in the Administrative Court by Moses J: [2004] EWHC 3362 (Admin).

1. The appeal against the general civil restraint order was allowed. At the relevant date, paragraph 4.1 of Practice Direction C to CPR Part 3 permitted a general order only where, despite an existing extended order, the litigant persisted in issuing totally meritless claims or applications. No extended order had previously been made against the claimant. Moses J therefore lacked power under the CPR to make a general order ([49]-[50]).

2. The court declined to treat the inherent jurisdiction to prevent abuse of process as a means of bypassing the recently introduced and comprehensive CPR scheme. That inherent jurisdiction continued to exist, but it would be very rare for its use to be appropriate in an area comprehensively covered by the Rules. It was inappropriate here ([61]-[63]).

3. An extended civil restraint order was in principle available in Administrative Court proceedings. The case-management powers applied to judicial review under CPR Part 54. A later court was not confined to earlier orders which expressly used the words “totally without merit”. It could examine the prior history and available judgments to determine whether the relevant claims or applications had in fact been so treated. Under the rule-based regime, persistent totally meritless claims or applications sufficed; a separate requirement of vexatiousness no longer applied ([65]-[70]).

4. Moses J nevertheless acted unfairly in making an extended order immediately. The prior litigation history was complicated, the respondents had not filed a civil restraint order application in the Administrative Court, and the claimant lacked the three clear days’ notice required by CPR 23.7. After refusing permission for judicial review, the judge should have adjourned the restraint application to permit a proper response. An interim order made of the court’s own initiative would have remained available if urgently justified ([71]-[75]).

5. Before the Court of Appeal, the claimant had a fair opportunity to answer the case and the fuller history established persistent totally meritless proceedings. The court substituted a two-year extended civil restraint order. It restrained claims or applications in the Court of Appeal, High Court and county courts concerning matters connected with the present proceedings, unless permission was first obtained from Collins J or a nominated judge ([76]-[77]).

• Court of Appeal (Civil Division): Allowed the appeal against the general civil restraint order, substituted an extended civil restraint order, and dismissed the remainder of the claimant’s renewed application for permission to appeal: [2006] EWCA Civ 990.
• Administrative Court: Moses J refused permission to apply for judicial review and made a general civil restraint order: [2004] EWHC 3362 (Admin).