Baxendale-Walker v Irwin Mitchell LLP & Ors

A limited civil restraint order may be made only where the party has made at least two applications which are totally without merit in the proceedings in which the order is sought. Applications made in other proceedings cannot be relied upon for that purpose. The jurisdiction to make a general civil restraint order is confined by Practice Direction 3C to the judges specified there and does not extend to an Insolvency and Companies Court Judge. The court may, however, direct that an application for a general order be heard by a High Court Judge where the relevant material appears capable of supporting such an order.

The applicant was a bankrupt. The trustees in bankruptcy sought a limited civil restraint order after an earlier application by the applicant had been dismissed as totally without merit. They alternatively sought a general civil restraint order, relying on applications and claims made in various proceedings.

The court considered whether an Insolvency and Companies Court Judge had jurisdiction to make a general civil restraint order and whether the two applications required for a limited order could include applications made outside the bankruptcy proceedings.

1. General civil restraint order. Paragraph 4.1 of Practice Direction 3C specifies the judges who may make a general civil restraint order. An Insolvency and Companies Court Judge is not included. The wording of the provision was clear, and the court therefore had no jurisdiction to make that order. If necessary, the matter would have been directed to a High Court Judge under the court’s case-management powers and the Insolvency Practice Direction.
2. Limited civil restraint order. Paragraph 2.1 of Practice Direction 3C provides that such an order may be made by a judge of any court where a party has made two or more applications which are totally without merit. Read with paragraph 2.2 and the structure of the three civil restraint regimes, “applications” means applications made in the proceedings in which the limited order is sought. The purpose of the order is to restrain further applications in those proceedings.
3. The distinction between the regimes supported that construction. An extended order concerns persistent claims or applications and may have effect across specified courts in matters connected with the proceedings. A general order is wider still. The limited regime concerns applications alone and is confined to the relevant proceedings.
4. The approach was consistent with Bhamjee v Forsdick [2003] EWCA Civ 1113, [2004] 1 WLR 88, the decision which led to the formulation of the regime, and with the reasoning preferred in Lilley v Euromoney Institutional Investor plc [2014] EWHC 2364 (Ch). Society of Lloyds v Noel [2015] 1 WLR 4393 concerned the wider extended-order regime and did not alter the construction of paragraph 2.1.
5. Only one qualifying application had been made in the bankruptcy proceedings. Applications made in other proceedings could not supply the second application required by paragraph 2.1. The limited civil restraint order was therefore refused. The court made no finding that a general order was appropriate, although the material seen appeared capable of supporting an application before a High Court Judge. Costs were to be agreed, with liberty to apply.