The Society of Lloyd's v Noel

When deciding whether a litigant has persistently issued claims or made applications which are totally without merit, the court may consider the litigant’s entire history. An earlier extended civil restraint order does not exclude the conduct which led to that order from the assessment.

The court may make an extended civil restraint order only where it is necessary to protect the administration of justice from abuse. It must assess the risk of further unmeritorious litigation and adopt a proportionate response. The order may be appropriate even where the applications were made in one set of proceedings. Its duration and scope should reflect the anticipated abuse, while preserving access for properly arguable claims or applications.

The Society of Lloyd’s applied for an extended civil restraint order against a former underwriting member, or alternatively for a limited civil restraint order. The respondent had repeatedly sought to reopen disputes concerning her underwriting membership, a settlement agreement and an injunction enforcing that agreement.

Five applications had been certified as totally without merit before an earlier extended civil restraint order was made. Following its expiry, two further applications received the same certification. The principal questions were whether the earlier applications could be considered when determining persistence, whether an extended order was appropriate, and what its duration and scope should be.

1. The application for an extended civil restraint order was granted. The court had power to make the order because the respondent had persistently made applications which were totally without merit. Her seven certified applications could all be considered, including the five which preceded an earlier extended civil restraint order.

2. Paragraph 3.1 of Practice Direction 3C – Civil Restraint Orders imposes no temporal restriction upon the claims or applications relevant to persistence. An earlier restraint order does not draw a line under the conduct which led to it. The provision describes a state of affairs and permits consideration of the litigant’s entire relevant history. That interpretation also serves the regime’s purpose of preventing abuse of the court system. Earlier conduct is relevant both to the existence of the power and to its discretionary exercise.

3. An extended order may be appropriate where persistent, totally unmeritorious applications have been made in one set of proceedings. The observation in Connah v Plymouth Hospitals NHS Trust [2006] EWCA Civ 1616 that the vice normally involves more than one set of proceedings did not establish an inflexible jurisdictional requirement.

4. Satisfaction of the persistence condition does not compel the court to make an order. The discretion must be exercised only where restraint is necessary to protect the administration of justice from abuse. The court must assess the risk of future totally unmeritorious proceedings and ensure that the order’s scope and duration constitute a proportionate response. Relevant considerations include the litigant’s stated intentions, conduct, and whether the circumstances generating the hopeless litigation continue.

5. There was a very high risk of further totally unmeritorious applications. The respondent had repeatedly attempted to relitigate matters concerning her underwriting membership, the settlement and the injunction, despite repeated rulings that the High Court could not reopen the injunction. Her breaches of the injunction and continuing submissions reinforced that assessment. A limited order would not adequately address the range of anticipated applications.

6. The extended civil restraint order was made for the maximum period of two years. It covered litigation arising from or connected with the respondent’s membership of Lloyd’s, the settlement agreement and the injunction, unless permission was first obtained from a High Court judge. An exception was required for an application to set aside a statutory demand or oppose a bankruptcy petition brought by Lloyd’s.

• High Court (Queen’s Bench Division): In The Society of Lloyd’s v Noel [2014] EWHC 4536 (QB), Popplewell J struck out the respondent’s application as totally without merit. He adjourned the request for an extended civil restraint order and directed that a formal application be issued and heard separately.
• High Court (Queen’s Bench Division): In the present judgment, Lewis J granted that application and made an extended civil restraint order.