Sartipy (aka Hamila Sartipy) v Tigris Industries Inc

An extended civil restraint order requires at least three totally without merit claims or applications, but that numerical minimum does not alone establish persistence. The court must evaluate the party’s overall conduct, including whether attempts have been made repeatedly to re-litigate decided issues.

A claim or application is totally without merit where it is bound to fail because it has no rational basis for success. Both a totally without merit claim and individual applications within it may count. A person who permits proceedings to be conducted in their name assumes responsibility for that conduct, but cannot be made responsible for claims or applications brought by the real party in that person’s own name in separate proceedings.

The appellant sought to set aside a final charging order and an order for sale concerning a London property. Henry Carr J set aside a default judgment obtained by the appellant, struck out her claim or alternatively entered summary judgment for Tigris, certified the proceedings as totally without merit and abusive, and imposed an extended civil restraint order.

Permission to appeal was granted only on whether the judge had jurisdiction to make an extended civil restraint order against the appellant. The appellant contended that the judge had wrongly counted litigation undertaken by her son, who was already subject to such an order. A further oral application to reopen the refusal of permission on alleged judicial bias was refused under CPR 52.30.

The central issue was whether sufficient totally without merit claims or applications, properly attributable to the appellant, established persistence for an extended civil restraint order.

1. Appeal dismissed. Males LJ, with whom Bean LJ agreed, held that Henry Carr J had jurisdiction to impose an extended civil restraint order on the appellant. The court also refused permission to reopen the earlier refusal of permission to appeal on bias. The CPR 52.30 criteria of real injustice and exceptional circumstances were plainly unmet.

2. Under Practice Direction 3C, an extended civil restraint order requires at least three totally without merit claims or applications. That is a minimum threshold, not a conclusive test of persistence. The court must assess the overall pattern of conduct. Repeated attempts to re-litigate decided issues may demonstrate persistence, whereas three unrelated applications made years apart may not.

3. A claim or application is totally without merit if it is bound to fail because there is no rational basis on which it could succeed. It need not be abusive or dishonest, although abuse, bad faith and false material reinforce the case for restraint.

4. For counting purposes, a claim is the proceeding commenced by the claim form and a totally without merit claim and totally without merit applications within it may both count. Only claims or applications made by the relevant claimant, counterclaimant or applicant may be counted. Dishonest or abusive conduct by a respondent cannot itself be counted, although it may illuminate the overall conduct and the necessity for restraint.

5. The concept of the real party includes a person controlling the proceedings and having a significant interest in their outcome. A named claimant who permits their name to be used is responsible for the totally without merit proceedings conducted in that name, even if personally innocent or unaware. But that named person is not responsible for proceedings brought by the real party in the latter’s own name in other litigation.

6. The court could take account of earlier claims or applications which it itself concluded were totally without merit, although not certified as such when made, provided it knew enough about them. The appellant’s adverse-possession claim, successive attempts to reopen settled issues, the present proceedings, and the default-judgment application supported by a false certificate of service supplied a persistent pattern. The two-year order was necessary and appropriate.

• Court of Appeal (Civil Division): Dismissed the appellant’s challenge to the jurisdiction to impose an extended civil restraint order: [2019] EWCA Civ 225.
• High Court, Chancery Division: Henry Carr J set aside a default judgment, struck out the claim or granted summary judgment for Tigris, certified the claim as totally without merit and abusive, and imposed an extended civil restraint order: [2017] EWHC 3596 (Ch).