Odutola v Hart & Ors

A general or extended civil restraint order requires proof of persistent claims or applications that are totally without merit. The greater interference caused by a general order requires a correspondingly clear and proportionate evidential basis. Three unmeritorious claims or applications may be the bare minimum for an extended order, with at least as high a threshold likely for a general order. A scattergun approach across different grievances may justify a general order in principle, but the statutory and procedural thresholds must still be met. A civil restraint order regulates access to the courts; it does not extinguish that right. Where persistence is borderline and not satisfactorily proved, neither an extended nor a general order should be made.

The petitioner had brought an unfair prejudice petition under Companies Act 2006, section 994, against the respondents. The petition was struck out as disclosing no reasonable grounds and certified as totally without merit. The court then considered whether the petitioner’s history of applications justified an extended or general civil restraint order. The issue was whether the requirements of Practice Direction 3C were satisfied and whether either order would be a proportionate response to the risk of further abuse of process.

1. Application refused. The court declined to make either an extended or a general civil restraint order.
2. An extended order requires the respondent to be a party who has persistently issued claims or made applications that are totally without merit. A general order requires persistence in such conduct and circumstances in which an extended order would not be sufficient or appropriate.
3. The jurisdiction protects parties and judicial resources from unwarranted litigation, but it regulates rather than removes access to the courts. Any order must therefore be proportionate to the identified or threatened abuse. The court applied the approach explained in Bhamjee v Forsdick [2003] EWCA Civ 1113.
4. Three unmeritorious claims or applications have been described as the bare minimum for persistence in relation to an extended order: In the Matter of Ludlam (a bankrupt) [2009] EWHC 2067 (Ch). Given the greater interference caused by a general order, the same or a higher threshold is required.
5. A general order may be apt where a litigant adopts a scattergun approach to litigation involving different grievances, as explained in R (on the Application of Kumar) v The Secretary of State for Constitutional Affairs [2006] EWCA Civ 990. The present petition displayed that character and created a substantial risk of further waste, but the evidence did not satisfactorily establish the necessary persistence.
6. The respondents’ application was properly made, but the borderline proof meant that either order would not quite be a proportionate response. The application was therefore refused, with a warning that repeated claims in the same vein might justify a future order.