Nelson v Wood

A general civil restraint order must preserve an affected party’s procedural right to challenge an order made without a hearing. That right does not permit repeated applications on grounds already heard and rejected. An application under rule 3.3(5) of the Civil Procedure Rules must be made within the seven-day period in rule 3.3(6). A later application brought months out of time and seeking to revive the same Article 6 complaint may be struck out as an abuse of process. When imposing a restraint order on its own initiative, the court may consider the litigant’s history of repeated unsuccessful proceedings.

Mr Nelson appealed against HHJ Kaye QC’s order of 6 August 2013 striking out his application of 29 July 2013 to set aside a general civil restraint order. The order had been made by HHJ Behrens on 7 March 2013 after he dismissed Mr Nelson’s application concerning Ms Hanley’s bankruptcy. It both permitted an unqualified application to set the order aside and imposed a permission procedure for later amendment or discharge.

Mr Nelson had already challenged the order before HHJ Behrens on 5 June 2013. That application was dismissed and permission to appeal was refused. The central issues were whether the later application was subject to the restraint order’s procedural restrictions and, if not, whether it could proceed despite delay and the earlier adjudication.

1. Appeal dismissed. The Court of Appeal unanimously upheld the strike-out of the application dated 29 July 2013.
2. Because the general civil restraint order had been made without a hearing, CPR 3.3(5) required provision for Mr Nelson to apply to have it set aside or varied. Paragraph 8 of the order gave him an unqualified right to apply to set it aside. That provision addressed the complaints based on natural justice and Article 6.
3. Mr Nelson had exercised that right by applying to HHJ Behrens on 5 June 2013. The judge had determined the merits of his challenge to both parts of the order. The Court therefore rejected the submission that there had been no previous hearing. A further application challenging the validity of the order had to comply with the permission procedure in paragraph 4 of the GCRO.
4. The Court noted the argument, supported by Deeds v Various Respondents [2013] EWCA Civ 1678, that an initial application to set aside a restraint order made without a hearing might not be subject to the order’s restrictions. It did not need to decide that issue. Even on that footing, the application could not succeed.
5. Under CPR 3.3(6), an application had to be made within seven days after service of the relevant order. The July application was more than four months late. It also repeated precisely the Article 6 grounds rejected by HHJ Behrens and therefore sought to resurrect matters already determined. In the circumstances, that was an abuse of process and striking out was the only appropriate order.
6. The court was entitled, when making a GCRO on its own initiative, to consider the long litigation history and the many unsuccessful attempts to challenge the bankruptcy order. Those matters were not irrelevant.

• Court of Appeal (Civil Division): dismissed Mr Nelson’s appeal against the strike-out order.
• High Court, Chancery Division, Leeds District Registry: HHJ Kaye QC struck out the application of 29 July 2013 for non-compliance with the GCRO.
• High Court: HHJ Behrens made the GCRO on 7 March 2013 and, following the unqualified application permitted by paragraph 8, dismissed Mr Nelson’s challenge on 5 June 2013.