Perry v F H Brundle & Ors

An extended civil restraint order requires persistent issue of claims or applications that are totally without merit. Three such claims or applications are the minimum threshold for persistence. Subject to that threshold, the court assesses the litigant’s conduct as a whole, including the likelihood of future repetition. The response must be graduated and proportionate to the abuse. A court may make an extended order in the Intellectual Property Enterprise Court because it is a specialist list of the High Court and has jurisdiction co-extensive with the Chancery Division in matters at first instance. A restraint order operates as a filter against unmeritorious litigation and should not materially deprive a litigant of otherwise available rights.

The claimant, a bankrupt litigant in person and proprietor of a patent, alleged that the defendants had infringed it through dealings in a fence bracket. The claim followed an earlier action concerning the same patent and bracket, in which the infringement claim failed because the bracket did not fall within the patent claims. The earlier decision was no longer open to appeal and made the issue res judicata.

The court struck out the present claim on alternative grounds: the cause of action vested in the Official Receiver and the claim was res judicata. It also dismissed four applications made at the hearing as totally without merit. The defendants sought an extended civil restraint order under the Civil Procedure Rules and Practice Direction 3C. The central issues were whether the IPEC had jurisdiction to make such an order and whether the claimant’s conduct justified it.

1. Jurisdiction. The IPEC, as a specialist list of the Chancery Division of the High Court, has jurisdiction co-extensive with the rest of the Chancery Division in matters at first instance. The expression “a judge of the High Court” in PD3C was not confined to a puisne High Court judge. The court therefore had jurisdiction to make an extended civil restraint order.
2. Applicable principles. The court adopted the principles derived from Courtman v Ludlum, Supperstone v Hirst, Lilley v Euromoney Institutional Investor plc, Attorney General v Ebert, Bhamjee v Forsdick and R (Kumar) v Secretary of State for Constitutional Affairs: the response to abuse must be graduated and proportionate; three wholly unmeritorious claims or applications are the minimum for “persistence”; and, beyond that minimum, the court must assess the litigant’s conduct as a whole, particularly the likelihood of future persistence.
3. A claim or application may be found retrospectively to have been totally without merit when the court determines the restraint-order application. An order should act as a filter against hopeless litigation and should not significantly deprive the litigant of rights otherwise available.
4. The threshold was met. The claimant had made at least three claims or applications found to be totally without merit, including the present proceedings and applications in the county courts. His continuing sense of grievance, proposed fraud and passing-off claims, and previous abusive conduct created a real prospect of further unmeritorious litigation.
5. A limited order was insufficient because future claims or applications were likely to be made wholly or partly outside the present proceedings. An extended civil restraint order was therefore appropriate.

First-instance decision. The judgment records that the claimant’s appeal and renewed permission application in the earlier patent proceedings were refused, but those decisions formed part of the same litigation and are not appellate stages of this judgment.