Avon And Somerset Constabulary v Gray (Rev 1)

A general civil restraint order may be extended where the court considers extension appropriate. The extension test differs from the threshold for making the original order. The court must balance the prevention of persistent abuse of process against the fundamental right of access to justice. A GCRO is a permission filter, not an absolute bar on proceedings. It may be justified by a continuing risk of totally without merit claims or applications, disproportionate collateral allegations, and repeated meritless interlocutory applications. The court should impose restrictions only to the extent necessary to protect other parties and public court resources.

The Chief Constable applied to extend a general civil restraint order made against Benjamin Gray by Teare J in 2014. Mr Gray had a lengthy history of civil claims and applications, including repeated findings that applications were totally without merit, and had incurred substantial unpaid costs. He opposed the extension, arguing that the statutory and procedural thresholds were unmet, that the order would reverse the burden of proof, and that it would prevent access to justice.

The central issue was whether extending the GCRO for a further period was appropriate under Civil Procedure Rules 1998, Practice Direction 3C.

1. Extension granted. The GCRO made by Teare J was extended for two years. The judge designated himself, Dingemans J, or a nominated judge to determine applications for permission.
2. The threshold in Practice Direction 3C paragraph 4.1 applies to the making of a GCRO. The test for extension under paragraph 4.10 is different: the question is whether extension is appropriate. A person already subject to a GCRO may have had no opportunity to issue a new totally without merit claim or application, so the original threshold cannot simply be repeated.
3. The evidence established a persistent history of totally without merit applications. It also showed a real risk of further applications, irrelevant or disproportionate collateral allegations, and claims framed in a manner contrary to the overriding objective. An extended order would not adequately address that risk because the conduct was not confined to one subject matter or defendant.
4. A GCRO engages the fundamental right of access to a court. It is lawful only where, and to the extent, necessary to pursue legitimate aims, including protecting other parties and public court resources from waste caused by unfounded litigation. The order operates as a permission filter. A claim with apparent merit should be allowed to proceed, subject to appropriate case management and controls on formulation.
5. The order did not reverse the burden of proof. In any permitted claim, the ordinary legal burden remained applicable. Unpaid costs were relevant, not as an independent basis for restricting access, but because they evidenced unsuccessful and disproportionate litigation and showed that ordinary costs sanctions had not deterred further abuse.
6. The judge initially rejected the asserted access-to-justice concern for lack of evidence. In the postscript, however, he varied the order to permit a judicial review challenge to a refusal to issue an application for permission where refusal was based on non-payment of a fee and allegedly deprived the applicant of access to justice.

The judgment describes earlier GCROs made against the respondent, including orders by MacDuff J, Silber J, Swift J and Teare J. This court extended Teare J’s order for two years. The order was later varied following an adjourned hearing to create a limited exception concerning refusal to issue an application because of non-payment of a fee.