Carrick v Kingston Upon Hull City Council

A civil restraint order is an order of the court and, absent express exclusion, breach may be enforced through the ordinary contempt jurisdiction under the Civil Procedure Rules 1998. A penal notice may therefore be affixed to such an order, including an extended civil restraint order. The decision whether to add a notice is for the lower court’s wide discretion. An appellate court should not substitute its own view and may intervene only for an error of law or fact, failure to consider a material factor, consideration of an irrelevant factor, or a manifest error in the exercise of discretion.

The appellant challenged the re-issue of an extended civil restraint order by HHJ Richardson, particularly the addition of a penal notice warning that breach could result in contempt proceedings and imprisonment. The order had been made in the context of persistent applications concerning an historic charging order and underlying employment-related proceedings.

The appellant also sought, through the appeal notice, to set aside the charging order. The central issues were whether the court had power to enforce an extended civil restraint order by committal for contempt and whether the lower court had acted within its discretion in adding the penal notice.

1. Permission and disposition. Permission to appeal was granted on the issues argued, but the appeal was dismissed. The further application to set aside the 2001 charging order was also dismissed as entirely without merit.
2. Contempt jurisdiction. Civil restraint orders are judgments or orders of the court. CPR 81.1(3) applies the contempt procedure to the High Court, county courts and Court of Appeal, unless otherwise stated. CPR 81.4(1)(b) permits enforcement by committal where a person disobeys an order not to do an act. The detailed consequences stated in CPR 3.11 and Practice Direction 3C do not exclude the ordinary contempt jurisdiction.
3. Penal notice. Since breach of an extended civil restraint order may attract contempt proceedings, the court has power to affix an appropriate penal notice. Such a notice merely warns of an existing legal consequence. Its use will be unusual, but there is no principled basis for treating civil restraint orders differently from other court orders.
4. Appellate review. The decision to add a penal notice lies within the lower court’s very wide discretion. An appellate court must not conduct a rehearing or substitute its own decision. Intervention is justified only where the lower court erred in law or fact, considered an irrelevant matter, failed to consider a relevant matter, or made a manifest error in exercising its discretion.
5. Application. HHJ Richardson was familiar with the appellant’s lengthy history of persistent and hopeless applications and was entitled to regard the burden imposed on court resources as relevant. Although the appellant had not deliberately breached the order, the decision to add the notice fell within the reasonable scope of the discretion.
6. Additional observation. The appellant was entitled, on the wording of the order and Practice Direction 3C, to seek permission to make applications by letter, provided the notice and other requirements were met. That point was not before the court as an appeal issue.

• County Court at Kingston upon Hull: HHJ Richardson re-issued an extended civil restraint order and added a penal notice.
• High Court (Chancery Division): Permission to appeal was granted, but the appeal was dismissed. The further application concerning the charging order was dismissed as entirely without merit.