Ellis v Ministry Of Justice

A person restrained from assisting others to bring claims in contravention of the Legal Services Act 2007 may breach that order by serving documents, seeking to file documents, assisting litigants at hearings, or providing an address for service, where those acts amount to prosecution of proceedings or ancillary functions in the conduct of litigation. The Court of Appeal noted, without deciding the full statutory scope, that the inclusion of commencement, prosecution and defence affects the reach of ancillary functions. A general civil restraint order may be made where a party persists in issuing claims or applications that are totally without merit. This can include a person who drives proceedings issued in other people’s names and is the real claimant or applicant. An unrelated prior decision by the judge, and unsupported allegations of systemic corruption, do not establish bias, disqualification or loss of jurisdiction.

Mr Ellis, a former solicitor, was subject to an order restraining him from issuing claims for others or assisting others to bring claims in contravention of the Legal Services Act 2007. May J found seven breaches proved to the criminal standard, imposed three months’ imprisonment suspended for one year, and made a two-year general civil restraint order. Mr Ellis appealed against the committal order and sought permission to appeal against the restraint order. He argued that May J should have recused herself, lacked jurisdiction because of alleged systemic corruption, mischaracterised his activities, and imposed an excessive sentence. The central issues were whether the conduct amounted to prohibited conduct of litigation and whether the restraint order was justified.

The appeal was dismissed and permission to appeal against the general civil restraint order was refused.

1. Procedural fairness and disqualification. The court found no procedural unfairness. Mr Ellis knew the case he had to meet and had a full opportunity to present evidence and submissions. May J was not disqualified merely because she had decided an unrelated case involving another person, particularly as Mr Ellis had not been involved in it. His general and specific allegations of corruption provided no basis for recusal, disqualification or loss of jurisdiction.
2. Breaches of the order. May J was entitled to make the factual findings, which were substantially accepted by Mr Ellis. The court declined to undertake a comprehensive construction of the phrase conduct of litigation in paragraph 4 of Schedule 2 to the Legal Services Act 2007. It noted that the statutory inclusion of commencement, prosecution and defence of proceedings affects the scope of ancillary functions.
3. Serving or attempting to serve documents on the Government Legal Department constituted prosecution of proceedings and an ancillary function. Seeking to file documents at court likewise fell within both categories. Assisting litigants at hearings involved prosecution of proceedings and/or an ancillary function. Providing an address for service led to the same conclusion. These activities therefore breached the restraint order.
4. Sentence. The breaches were properly characterised as of high severity and demonstrated complete disregard for the authority of the court. The three-month sentence was not excessive, and its suspension was a merciful exercise of discretion.
5. Civil restraint order. Paragraph 4.1 of the Civil Procedure Rules 1998 Practice Direction permits a general civil restraint order where a party persists in issuing claims or making applications that are totally without merit. A person who drives proceedings issued in other people’s names may properly be treated as the real claimant or applicant. Although the circumstances were not on all fours with Moosun v HSBC Bank Ltd [2015] EWCA 3308 (Ch) and CFC v Brian Shipley [2017] EWHC 1594 (Ch), May J was entitled to find persistent, vexatious and litigious conduct and to make the two-year order.

• Court of Appeal (Civil Division): dismissed the appeal against the suspended committal order and refused permission to appeal against the general civil restraint order.
• High Court, Queen’s Bench Division: May J, on 22 February 2018, found seven breaches of the restraint order, imposed three months’ imprisonment suspended for one year, and made a two-year general civil restraint order.