Akester v Fitzgerald

An applicant cannot evade an extended civil restraint order by presenting an application in a different court or by creating a spurious link with separate proceedings. Applications falling within the order require prior permission. Challenges to a Family Court order must ordinarily be pursued by appeal, and any stay pending judicial review should be sought in the judicial review proceedings. Serious allegations against legal representatives must be properly particularised and must have a logical and legal connection with the relief sought. Unparticularised allegations pursued in the wrong forum may amount to an abuse of process.

Mr Fitzgerald applied in the Family Division for a stay of orders made by Her Honour Judge Wright in financial remedy proceedings brought by his wife, Catherine Akester. He also sought the revocation of earlier Court of Protection orders, the committal of a solicitor, relief pending judicial review, and other orders based on allegations of dishonesty and attempted fraud.

The application was dealt with on paper. The central issues were whether the Family Division could grant the relief sought, whether the extended civil restraint order required permission for parts of the application, and whether the allegations disclosed any proper basis for intervention.

1. Application dismissed. The applications were misconceived, totally without merit and an abuse of process.
2. The extended civil restraint order prohibited applications concerning matters within its scope unless permission had first been obtained. The application to revoke the Court of Protection orders fell within that scope. Mr Fitzgerald could not avoid the permission requirement by linking the application to Family Court proceedings or by issuing it in the High Court.
3. If dissatisfied with Judge Wright’s order, Mr Fitzgerald’s remedy was to seek permission to appeal. A stay pending judicial review should be sought in the Administrative Court within the judicial review proceedings, not in the Family Division or in the proceedings in which the Family Court order was made.
4. The proposed committal application under Court of Protection Rule 14 was devoid of merit. The alleged contempt had no factual, logical or legal nexus with the Family Court proceedings and concerned an issue already determined in the Court of Protection.
5. The allegations concerning solicitor dishonesty and attempted fraud were wholly unparticularised. Their pursuit in the manner adopted was a plain abuse of process. The court therefore declined all the orders sought.

The judgment describes earlier orders made in related Family Court and Court of Protection proceedings, but it is a first-instance determination of the present application and does not record an appeal from an earlier judgment.