Mashate v Kaguta

An extended civil restraint order is not justified merely by applications which are effectively responsive to earlier litigation. The order must be supported by conduct properly warranting that form of restraint. Where an appeal against such an order is accepted as successful, the Court of Appeal may set it aside by consent without determining wider merits. A claimant subject to a stay cannot take further steps without leave to lift it. Proceedings intended against a foreign head of state require permission for service in accordance with the State Immunity Act. Costs may be reserved pending resolution of sovereign-immunity issues.

Dr Jesse Mashate appealed against paragraph 6 of an order made by His Honour Judge Seymour QC, sitting as a High Court judge, on 21 October 2011. That paragraph imposed an extended civil restraint order on the claimant. Permission to appeal was granted on 16 May 2012, limited to that order.

The respondent, the President of the Republic of Uganda, consented to the order being set aside, so the merits did not require determination. The Court also addressed the stayed status of the action, the capacity in which the respondent was sued, service, sovereign immunity and costs.

1. Appeal allowed by consent. The extended civil restraint order imposed by paragraph 6 of the High Court order of 21 October 2011 was set aside.
2. The order was inappropriate because it rested on two applications, made on 21 July and 4 October 2011, which the High Court judge had described as effectively responsive applications. The judge was not justified in imposing an extended civil restraint order on that basis. It was unnecessary to decide whether other conduct might have justified a more limited restraint order, since no such order was sought.
3. The action remained stayed pursuant to a stay imposed by Blair J on 11 July 2008. The claimant could take no further step without leave to lift the stay. Any such application was to be made to the judge in charge of the Queen’s Bench non-jury list or a nominated Queen’s Bench judge.
4. The claimant had clarified that he intended to sue the respondent as Head of State of the Republic of Uganda. That raised unresolved sovereign-immunity issues. If the claim were pursued in that form, permission to serve proceedings would be required in accordance with the provisions of the State Immunity Act, after leave to lift the stay had been obtained.
5. Costs were reserved because they could not sensibly be determined until the claim was coherently formulated and sovereign immunity had been resolved. The consent order was without prejudice to that issue.

• Court of Appeal (Civil Division) ([2012] EWCA Civ 1168): allowed the appeal by consent and set aside the extended civil restraint order.
• High Court of Justice, Queen’s Bench Division: on 21 October 2011, His Honour Judge Seymour QC imposed the extended civil restraint order under paragraph 6 of his order.