Couper v Irwin Mitchell LLP & Ors

An extended civil restraint order may prevent a claimant from issuing related claims against parties who were not defendants in the proceedings giving rise to the order. Its scope is determined by the operative words of the order and its purpose, including preventing harassment and waste of court resources. A claim issued without the required permission is automatically struck out. The court may grant relief from that sanction under rule 3.9, applying the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906. A good underlying claim does not necessarily justify relief where the breach was serious and unexplained. Permission to issue a fresh claim may nevertheless be granted where the claim is distinct, has some apparent merit, and exclusion would be disproportionate.

Mr Couper was subject to an extended civil restraint order made in earlier proceedings after repeated applications had been dismissed as totally without merit. The order restrained him from issuing claims or making applications concerning matters involving, relating to, touching upon or leading to those proceedings without prior permission.

He issued professional-negligence claims against his former solicitors and former leading counsel. The claim against counsel was issued without permission. Counsel applied for a declaration that it had been automatically struck out under Practice Direction 3C. Mr Couper argued that the claim fell outside the order, alternatively sought relief from sanction, and further sought permission to issue a fresh claim.

1. Scope of the order. The claim against Lord Thomas concerned the Main Claim because it alleged that his negligence had caused Mr Couper to lose that litigation and claimed losses connected with it. The extended civil restraint order was not limited to claims against the original defendants. Although the notice provisions suggested that such orders were primarily directed to claims against those defendants, the operative wording was broader. A narrower construction would allow the order to be defeated by suing related persons, such as company directors, and would fail to protect defendants and court resources.
2. Automatic strike-out. The claim was therefore within the order and had been automatically struck out under Practice Direction 3C paragraph 3.3(1) when issued without advance permission. Subsequent participation by Lord Thomas did not waive the protection of the order or create an estoppel. The order operated for the protection of the original defendants and the court, not merely for the benefit of the party sued.
3. Relief from sanction. Rule 3.9 empowered the court to grant relief even though the claim had already been struck out. Applying the three stages in Denton v TH White Ltd [2014] EWCA Civ 906, the breach was serious and significant because prior permission was central to the restraint order’s purpose. There was no good explanation: Mr Couper had failed to apply for permission despite having done so in relation to another claim. The apparent merits of the claim did not outweigh those matters. Relief was refused, with any limitation consequences resulting from that refusal falling on Mr Couper.
4. Fresh claim. Permission was granted to issue a fresh claim against Lord Thomas and to consolidate it with the claim against Irwin Mitchell. The professional-negligence claim was distinct from the Main Claim, was not shown to be totally without merit, and could overlap with a likely contribution claim. Preventing it altogether would be disproportionate. Any application in the consolidated action would still require advance permission under the restraint order.