Deeds v Various Respondents

Where a general civil restraint order is made on the court’s own initiative without prior representations, the affected person has a right under rule 3.3(5)(a) of the Civil Procedure Rules 1998 to apply to set it aside, vary it or stay it. An application exercising that right is distinct from an application for permission under Practice Direction 3C.

Although an oral hearing is not invariably required, there is a presumption in its favour where access to the courts is at stake. A person made subject to such a serious order without notice must ordinarily have an opportunity, at some stage, to present an oral defence. Determination on the papers may amount to a serious procedural irregularity making the decision unjust.

A general civil restraint order was made against the appellant on the High Court’s own initiative, without a hearing or an opportunity to make representations. The order permitted him to apply, without prior permission, to have it set aside, varied or stayed.

Males J rejected that application on the papers, relying on paragraph 4.6 of Practice Direction 3C. Morgan J then refused to set aside Males J’s order, also on the papers, because he considered that the Practice Direction required determination without a hearing and prevented one High Court judge from reversing another’s decision.

The appellant appealed on the ground that the procedure had denied him a fair opportunity to challenge an order restricting his access to the courts. The central issue was whether the paper determination constituted a serious procedural irregularity which made the decision unjust.

1. The appeal was allowed unanimously. Males J’s order was set aside, and the appellant’s application to set aside the general civil restraint order was directed to be considered at an oral hearing before a High Court judge.

2. Per Lewison LJ, with whom Richards LJ and Coleridge J agreed, the original restraint order was made on the court’s own initiative and was therefore governed by rule 3.3 of the Civil Procedure Rules 1998. Rule 3.3(5)(a) gave the appellant a right to apply to set aside, vary or stay that order. The original order expressly permitted him to exercise that right without first obtaining permission.

3. Paragraph 4.6 of Practice Direction 3C governs an application for permission to apply to amend or discharge a validly made general civil restraint order. It does not govern the substantive application to amend or discharge the order after permission has been granted. It was therefore wrong to regard paragraph 4.6 as requiring the appellant’s substantive application to be determined on the papers.

4. Rule 23.8(c) did not cure the error. If Males J had used that power to determine the application without a hearing, paragraph 11.2 of Practice Direction 23A required the application to be treated as though the resulting order had been made on the court’s own initiative. Rule 3.3 would then have applied again, and the order should have recorded the appellant’s right to apply to set it aside.

5. An oral hearing is not required in every case. Whether one is required under rule 3.3(5)(a) depends on the nature of the order. Where a citizen’s access to the courts is at stake, however, the presumption favours an oral hearing. The restraint order was serious, had been imposed without prior representations, and created a significant hurdle to court access. Fairness therefore required an opportunity to explain orally why it should not have been made.

6. The power to impose a civil restraint order on the court’s own initiative without notice is exceptional and is contemplated as an urgent interim measure. The rules contemplate that the affected person will have an opportunity at some stage to present an oral defence, whether in response to an application or on an application to set aside an order made without notice.

1. Court of Appeal (Civil Division): The appeal was allowed. Males J’s order was set aside, and the application to set aside the general civil restraint order was directed to an oral hearing before a High Court judge: [2013] EWCA Civ 1678.

2. High Court, Morgan J: An application to set aside Males J’s order was refused on the papers. Morgan J considered that paragraph 4.6 of Practice Direction 3C authorised the paper determination and that he could not reverse Males J’s decision.

3. Males J: The application to set aside the general civil restraint order was refused on the papers on the stated basis that paragraph 4.6 of Practice Direction 3C required determination without a hearing.

4. High Court, Swift J: A general civil restraint order was made on the court’s own initiative without a hearing or an opportunity for representations. It permitted an application, without prior permission, to set aside, vary or stay the order.