Nowak v The Nursing and Midwifery Council & Anor (Rev 1)

An extended civil restraint order may be made only where a litigant has persistently issued claims or made applications which are totally without merit. Once that condition is met, the court must assess the objectively demonstrated risk of further abuse and impose the least restrictive order necessary and proportionate to protect its process.

A civil restraint order is compatible with article 6 because it preserves access for properly arguable claims while preventing misuse of finite court resources. An order may depart from the usual scope where the litigant’s conduct shows that a wider but proportionate restraint is required.

The claimant, a nurse formerly employed by the Trust and subject to disciplinary proceedings before the NMC, began a civil claim alleging breaches of the Data Protection Act 1998 and the Protection from Harassment Act 1997. He did not serve particulars of claim. His claim was struck out after non-compliance with an unless order.

Before and after that strike-out, he made numerous applications, including applications for disclosure, stays, recusal, injunctive relief and orders concerning the defendants’ witnesses. Eight applications within five months were certified or held to be totally without merit. The court considered whether an extended civil restraint order should be made, its proper scope, the compatibility of such an order with article 6, and whether the claimant’s pending attempt to renew permission to appeal should be stayed.

1. An extended civil restraint order was made. The claimant had made eight applications which had been found totally without merit in five months. His persistence, including applications made after his claim had been struck out, established both the condition in Practice Direction 3C and a clear risk of further abusive litigation if unrestrained.

2. The court adopted a three-stage approach. It must first determine whether the Practice Direction’s threshold is met. It must then assess the objectively demonstrated risk of further abuse. Finally, it must make the least restrictive order necessary and proportionate to protect the court’s process. A later judge need not re-examine whether an earlier application was totally without merit where the order records that finding.

3. The restraint was compatible with article 6 of the Convention. A civil restraint order does not extinguish access to the court. It requires prior judicial permission, which should be granted for a properly arguable claim or application. The restriction pursues the legitimate and proportionate aim of preserving court resources and protecting other parties from hopeless litigation. The court applied the approach in Bhamjee v Forsdick [2004] 1 WLR 88.

4. The usual extended-order wording was insufficient. To prevent sterile disputes about whether a new claim was related to the existing proceedings, the order required permission for any claim or application against either defendant, and for claims against others concerning matters connected with the proceedings. It retained exceptions for specified applications to set aside or vary earlier orders, appeals from them, and any statutory appeal following an NMC disciplinary sanction.

5. The claimant’s proposed renewed application for permission to appeal from the disclosure order was stayed. Even a successful appeal from that earlier order would not automatically set aside the separate unless order or the later order entering judgment. Those orders remained an absolute bar unless separately set aside.

6. The claimant was ordered to pay costs of the 8 May hearing of £5,000 to the NMC and £4,400 to the Trust, and costs of the 22 May hearing of £2,000 to each defendant. Future communications in or connected with the proceedings were required to be in hard copy.

This was a first-instance judgment concerning the making of a civil restraint order, following procedural decisions in the same High Court proceedings.

• High Court (Master Kay QC): the pre-action disclosure application was dismissed as totally without merit on 5 February 2013. Subsequent applications for a stay, recusal and setting aside an unless order were also dismissed; the claim was struck out and judgment entered for the defendants.
• High Court (Bean J): on 3 May 2013, permission to appeal from the order of 5 February 2013 was refused and the proposed appeal was certified wholly without merit.
• High Court (Leggatt J): made the extended civil restraint order and stayed the claimant’s attempt to renew permission to appeal unless the later strike-out and judgment orders were first set aside.