Perry v F H Brundle & Ors

A general civil restraint order may be granted where a litigant persists in issuing claims or making applications that are totally without merit, and an extended order would not be sufficient or appropriate. The court must adopt a graduated and proportionate response. It should assess persistence by reference to the litigant’s conduct as a whole, including the likelihood of future repetition. A claim or application may be adjudged totally without merit retrospectively. A restraint order is a permission filter, not an absolute bar on access to the courts. It must protect other parties and court resources while preserving access for claims with arguable merit.

The claimant had previously brought patent infringement proceedings against the defendants. His infringement claim failed, while the defendants’ claim for unjustified threats succeeded. A subsequent claim concerning the same patent was struck out as res judicata and because the cause of action vested in the Official Receiver. The claimant was then made subject to an extended civil restraint order, which expired on 25 March 2017.

The first and second defendants applied for a general civil restraint order. The claimant intended to pursue further claims and applications, including allegations of fraud and conspiracy, patent-related relief, passing off, annulment of his bankruptcy order, and complaints concerning the defendants’ solicitors and the Official Receiver. The issue was whether there was a real risk that he would persist in bringing claims or applications that were totally without merit, in circumstances where an extended order would not be sufficient or appropriate.

1. Application granted. A general civil restraint order was granted against the claimant for two years from 27 March 2017.

2. The jurisdiction to grant a general civil restraint order in the Intellectual Property Enterprise Court was the same as the jurisdiction to grant an extended civil restraint order. This followed from the relevant provisions of Civil Procedure Rules 1998, CPR PD3C paragraphs 3.1 and 4.1.

3. The principles governing an extended order applied equally to a general order, subject to the additional requirement that an extended order would not be sufficient or appropriate. Ordinarily, this required evidence that the litigant was likely to persist in bringing totally without merit claims or applications concerning matters outside the proceedings covered by an extended order.

4. The court should respond in a graduated and proportionate manner. For an extended order, persistence ordinarily required at least three totally without merit claims or applications. Persistence, particularly the likelihood of future repetition, was assessed by reference to the litigant’s conduct as a whole. The court could determine retrospectively that a claim or application was totally without merit.

5. A restraint order interfered with access to the courts and therefore required care. Its purpose was to filter out unmeritorious litigation and protect the parties and public court resources. It did not prevent all proceedings. Permission should not be refused to a claim of substance with arguable merit, although the court could require untenable aspects to be removed and impose directions promoting fair, efficient and proportionate conduct.

6. The claimant’s proposed allegations were assessed as lacking merit. His alleged evidence of fraud, when examined, showed only that correspondence had been passed between a supplier and its customer in circumstances that were neither unlawful nor improper. The court had seen nothing in the other proposed claims that raised them above the level of being totally without merit. There was consequently a real risk of future totally without merit claims and applications, including matters outside the scope of the expired extended order.

The judgment was a first-instance decision on an application for a general civil restraint order. The court recorded that an earlier extended civil restraint order had been granted in the same litigation and that permission to appeal it had been refused.