Somerset Constabulary v Gray

On an application to extend a general civil restraint order, the court must decide whether extension remains appropriate in light of the need to protect litigants and court resources from vexatious proceedings, while giving full regard to the restrained party’s access to the court. A fee payable before an application for permission does not itself establish an effective bar to litigation. Such a conclusion requires evidence that the party cannot obtain the sum by other means. The fact that a fee is repaid when permission is granted, but is lost on an unmeritorious application, is a legitimate disciplinary feature for vexatious litigants under the Civil Proceedings Fees Order 2008.

The Chief Constable appealed against Stuart-Smith J’s refusal to extend a general civil restraint order imposed on Benjamin Gray. The order had been renewed on several earlier occasions because of a history of unsuccessful and totally without merit proceedings. The judge accepted that Mr Gray was likely to bring unmeritorious claims if unrestricted, but declined an extension. He considered that the requirement to pay a fee before seeking permission to issue proceedings operated in practice as a total bar to litigation for Mr Gray and might worsen his mental health.

The appeal concerned whether the judge had erred in his construction and assessment of the fee regime, and in treating the absence of an extended restraint order as likely to improve Mr Gray’s position.

1. Appeal allowed. The Court set aside the refusal to extend the general civil restraint order and extended it from 22 July 2019.
2. The test for extending an order under paragraph 4.10 of PD 3C is whether extension is appropriate. Since the restriction on litigation is the same as when the order was first imposed, that question must be read with the original threshold in paragraph 4.1. The court must assess whether restraint remains necessary to protect litigants and finite court resources from vexatious proceedings, while fully considering its impact on the restrained party.
3. Under the Civil Proceedings Fees Order 2008, the fee for permission to issue proceedings was £55, not £255. A person subject to a restraint order must pay that prescribed fee in full before applying and cannot obtain fee remission at that stage. If permission is granted, the person receives the difference between the fee paid and the fee that would otherwise have been remitted.
4. The judge erred in treating the £55 fee as an absolute or effective bar without detailed evidence that Mr Gray could not obtain it through borrowing, support, legal aid or representation under a funding agreement. The repayment of the fee for a meritorious claim made the position one of cash flow. The loss of the fee on an unmeritorious application was a legitimate deterrent. The Court applied the access-to-justice principles in R (Unison) v Lord Chancellor [2017] UKSC 51, but held that the necessary evidence of an effective denial of access was absent.
5. The judge also lacked any evidential basis, and in particular expert evidence, for a prognosis that extending the order would worsen Mr Gray’s mental health or reduce conflict with others. The findings that Mr Gray could not restrain himself and was likely to bring unmeritorious claims instead supported extension. Any meritorious claim should obtain permission.
6. Proceedings issued during the interval between the refusal below and the interim re-imposition of the order could not retrospectively constitute breaches or contempt. Their future conduct was to be considered together by the judge dealing with applications under the renewed order.

• Court of Appeal (Civil Division): Allowed the Chief Constable’s appeal in Somerset Constabulary v Gray [2019] EWCA Civ 1675, set aside the refusal below and extended the general civil restraint order.
• High Court (Queen’s Bench Division): Stuart-Smith J dismissed the application to extend the order in Chief Constable of Avon and Somerset Constabulary v Benjamin Gray [2019] EWHC 1954 QB.
• High Court (Queen’s Bench Division): Warby J had previously granted and later amended the restraint order in Chief Constable of Avon and Somerset Constabulary v Benjamin Gray [2016] EWHC 2998 (QB).