Forrester Ketley & Co v Brent

An extended civil restraint order may validly prohibit a litigant from taking steps in any court, alongside the specific procedural rules governing civil restraint orders. The court’s inherent jurisdiction continues to operate in parallel with those rules, although reliance on it should be very rare.

When permission is required, the court should ordinarily consider whether the proposed claim, application or step has a realistic prospect of success. Permission may nevertheless be granted where other considerations make that necessary in the interests of justice. Conversely, even a realistically arguable matter may be refused where it would exceptionally be oppressive to the opposing party.

The claimant had obtained judgment, charging orders and an extended civil restraint order against the defendant following lengthy litigation. The order restrained the defendant until 5 September 2009 from issuing claims, making applications or taking steps in any court concerning the underlying proceedings without permission.

The defendant sought permission for 53 further applications, including applications challenging the restraint order, seeking a stay pending proceedings before the European Court of Human Rights, setting aside a statutory demand, obtaining procedural directions and appealing earlier orders. The court also considered the proper scope of the restraint order and the management of related bankruptcy and charging-order proceedings.

1. Scope and validity of the restraint order. The words “taking steps in any court” were within the court’s power. Ebert v Vinvell [2000] Ch 484 established that the court could make an extended order of that kind. The inherent jurisdiction continued alongside the specific civil restraint rules, as recognised in R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536, although reliance on that jurisdiction would be very rare.
2. The words following “namely” identified the underlying proceedings in action HC01 01288. The words referring to any matter “involving or relating to or touching upon or leading to” those proceedings were deliberately broad. The safeguard was the ability to seek permission.
3. The defendant was prima facie entitled to defend the claimant’s later charging-order and bankruptcy proceedings. Permission was required, however, if the proposed defence relied on matters involving, relating to, touching upon or leading to the earlier proceedings.
4. In deciding whether to grant permission, the court should normally consider whether the proposed claim, application or step had a realistic prospect of success. Permission could exceptionally be granted for another sufficient reason when assessing the interests of justice. Even where there was a realistic prospect of success, permission could exceptionally be withheld if the proposed step would be oppressive to the other party.
5. The defendant had no realistic prospect of successfully challenging the restraint order, obtaining a stay pending his European proceedings, setting aside the statutory demand, obtaining further answers under CPR Part 18, or appealing earlier orders. Permission for all 53 applications was refused. The bankruptcy proceedings were transferred to the High Court, the charging-order proceedings were directed to be dealt with by a Chancery Division judge, and the claimant was awarded assessed costs of £1,690.