Philcox v Wilson & Anor

A court may make an extended civil restraint order where a party has persistently issued claims or made applications that are totally without merit. The court should assess the objective risk of further abuse of its process and then make the least restrictive order necessary and proportionate to address that risk.

Three separate orders based on totally without merit findings may satisfy the threshold, even where they arise within the same proceedings and include a renewed application. The court may consider the party’s wider litigation history, including earlier unmeritorious applications. An extended order may restrain claims and applications in specified courts concerning matters connected with the proceedings for a specified period of no more than two years.

The claimant had pursued allegations against the defendants, who were High Court Enforcement Officers or formerly employed in that role. His application seeking termination of their authorisation had been struck out as an abuse of process and without reasonable grounds. Applications to set aside that order and for permission to appeal were dismissed by the Senior Master. A renewed application for permission to appeal was dismissed by this court on the basis that it was an abuse of process and totally without merit.

Under CPR 23.12 and CPR 52.20(6), the court was required to consider whether to make a civil restraint order. The issue was whether the threshold for an extended civil restraint order was met, whether there was a sufficient risk of future abuse, and what order was just and proportionate.

1. The court had power to make an extended civil restraint order. The relevant threshold under paragraph 3.1 of practice direction 3C was persistent issue of claims or applications that were totally without merit. Three separate orders based on such findings were sufficient. They need not relate to three distinct or unrelated claims, and a renewed application could count as an additional application.
2. The absence of the express words “totally without merit” in an earlier order did not prevent reliance on it. The court had to satisfy itself that the earlier claim or application was in fact totally without merit. The order of the Senior Master dated 4 July 2018 plainly recorded findings meeting that requirement.
3. The court adopted the three-stage approach identified in Nowak v The Nursing and Midwifery Council and another [2013] EWHC 1932: first, determine whether the threshold is met; secondly, assess objectively the risk of further abusive claims or applications; and thirdly, decide what order is just and proportionate. The rationale of the jurisdiction is protection of the court process and its resources, not denial of access to arguable claims.
4. The court could consider the claimant’s complete history of totally without merit claims and applications, without limiting the inquiry to a particular period. The historic proceedings relied on by the defendants showed a persistent pattern of unfounded allegations, repeated applications and refusal to accept adverse decisions.
5. An extended order was necessary. The claimant’s continuing allegations and attempts to pursue the same matters through other avenues demonstrated a clear risk of further abusive civil proceedings. A limited order would not adequately protect the court system. The claimant was therefore restrained for two years from issuing claims or making applications in the High Court or any County Court concerning matters involving, relating to, touching upon or leading to the proceedings, without first obtaining permission from the court.

First-instance decision. The court had previously dismissed the claimant’s renewed application for permission to appeal against the Senior Master’s order, but this judgment concerned the consequential question whether to make a civil restraint order.