Bukhari v Pow Trust & Ors

A civil restraint order may be made where a party has made at least two applications which were totally without merit. Permission is required before applying to discharge such an order, and the permission application should ordinarily be determined without a hearing. A court may revisit or reinstate an order under CPR 3.1(7) in special circumstances, including a material change of circumstances or material misleading of the judge. Reinstatement is justified where the original statutory threshold was met and any misinformation did not affect the underlying merits. Procedural irregularities in a later discharge application may also justify setting aside an order made without notice.

The applicant sought to reinstate a civil restraint order made against the respondents in connection with possession proceedings. An earlier application to discharge the order had failed before Owen J. A later application succeeded before Christopher Clarke J, who granted permission to apply for discharge and discharged the order at the same hearing, without the applicant being represented.

The applicant contended that the later order had been made without proper notice and that the respondents had materially misrepresented the history of earlier applications, including the findings that several applications were totally without merit. The central issues were whether the later order should be set aside and whether the civil restraint order should remain in force.

1. The order of Christopher Clarke J was set aside and the civil restraint order was reinstated. The applicant had not been served with a substantive application to discharge the order. The information provided could reasonably have been understood as relating only to an application for permission. The applicant was therefore entitled to seek relief under CPR 23.10 in respect of an order made without notice.
2. Practice Direction 3C requires permission before a party subject to a civil restraint order may apply to discharge it. The permission application is to be determined without a hearing. Granting permission and immediately determining the substantive application deprived the other party of the protection intended by the permission stage.
3. Under CPR 3.1(7), the court may revoke or vary an earlier order in special circumstances. The recognised circumstances include a material change of circumstances or the judge having been materially misled, whether innocently or otherwise. The same principle ordinarily applies when considering reinstatement of a civil restraint order, subject to the need for consistency and finality.
4. The court considered the matter afresh by asking whether a civil restraint order should be in force. The original order was authorised because there had been at least two applications found to be totally without merit. The respondents had failed to establish that the judges whose findings formed the basis of the order had acted under a relevant misapprehension.
5. Although the earlier judge had been incorrectly told that an order recorded satisfaction with evidence concerning warrants, that misinformation did not show that the underlying findings or outcome would have been different. The respondents’ application to discharge the order was itself totally without merit.
6. The court made general observations that Practice Direction 3C might usefully provide for records or transcripts explaining civil restraint orders and specify the procedure following permission to apply for discharge.

The judgment records earlier applications concerning the civil restraint order before Owen J and Christopher Clarke J. This was a fresh application by Mr Bukhari to set aside the later discharge order and reinstate the civil restraint order.