Vaidya v General Medical Council

A general civil restraint order may be made where a party persists in issuing claims or applications that are totally without merit and an extended civil restraint order would not provide sufficient protection. Advance knowledge that such an order might be sought is not equivalent to knowledge of the actual application or participation in it. A later full hearing may satisfy Article 6(1) by providing an effective opportunity to address the application.

The claimant applied to set aside a general civil restraint order made in his absence. He contended that he had been abroad, had not known of the specific application or hearing, and that the order breached Article 6(1) and was disproportionate.

The defendant relied on CPR rule 39.3(5) and contended that the claimant had notice of the proceedings, no good reason for non-attendance, and no reasonable prospect of defeating the application. The court also considered whether the requirements for a general civil restraint order under CPR rule 3.11 and Practice Direction 3(C), paragraph 4.1, were met.

1. The application to set aside the order was dismissed. Knowledge that a civil restraint order might be sought was not knowledge of the actual application or hearing. The claimant therefore had a right to be present and heard. The circumstances were materially different from White v Weston [1968] 2 QB 647 and did not fall within the principle discussed in Hackney London Borough Council v Driscoll [2003] 1 WLR 2602.

2. There was no continuing breach of Article 6(1). The claimant had received a full hearing, had addressed the defendant’s case in writing and orally, and had been able to respond to the substance of the application.

3. Under CPR rule 3.11 and Practice Direction 3(C), paragraph 4.1, a general civil restraint order requires proof that the party persists in issuing claims or making applications which are totally without merit and that an extended civil restraint order would be insufficient or inappropriate.

4. The claimant’s repeated meritless proceedings, attempts to re-litigate matters already determined, reformulation of causes of action before different tribunals, disregard of judicial warnings, and continuation of proceedings despite the earlier order established persistence. An extended order would not provide adequate protection. A general civil restraint order was therefore justified and necessary.

5. Any defect in the form of the original order had been rectified. The order remained in force.

The judgment records that the general civil restraint order had been made by Sir Charles Gray on 25 June 2010. A subsequent order of Slade J directed that it be drawn up on the appropriate form and remain in force.