The Chief Constable of Avon And Somerset Constabulary v Gray

When deciding whether to extend a general civil restraint order, the court must balance the risk of vexatious litigation against the restrained party’s ability to pursue potentially meritorious claims. The court must consider the order’s practical effect, including whether an application fee makes it an effective bar rather than a permission filter. Previous findings that proceedings were totally without merit may be relied upon as part of the evidential context, but their significance may diminish with time. The court must also consider the impact of restraint on access to justice and the restrained party’s circumstances. An order should not be extended where, on the evidence, the balance just favours allowing proceedings to resume.

The Chief Constable applied to extend a general civil restraint order made against Benjamin Gray. The order had originally been made by Teare J in 2014 and extended by Warby J in 2016. It required Mr Gray to obtain permission before issuing claims or making applications.

The application relied on Mr Gray’s history of claims and applications found to be totally without merit, together with numerous complaints made during the currency of the order. Mr Gray argued that the application fee made the order an effective bar to proceedings, including potentially well-founded claims, and relied on his limited financial means. The central issue was whether it was appropriate to extend the order for a further period.

1. Recusal. The judge rejected the recusal application. His limited involvement in a possible criminal case transfer involved no case management decision and gave no fair-minded and informed observer reason to conclude that there was a real possibility of bias.
2. Applicable test. Under CPR r.3.11 and PD 3C, the question on an extension is whether the court considers it appropriate to extend the order. That question must be read in light of the conditions for making a GCRO, including the need to protect litigants and court resources from vexatious proceedings while having full regard to the restrained party’s rights and the order’s impact.
3. Previous findings that proceedings were totally without merit remained matters of record which could be relied upon. Under the principle in AG v Jones (Marcus David) [1990] 1 WLR 859, a litigant could not reopen such findings in the later restraint application. That principle had been followed and reaffirmed in AG v Sheikh [2019] EWHC 763 (Admin). However, the evidential significance of old findings could diminish with time. Mr Gray had brought no civil claims or applications during the existing GCRO.
4. The evidence showed a substantial risk that Mr Gray would resume making unmeritorious claims and applications if unrestricted. The court was entitled to assess the number, range and character of his complaints without deciding the truth of each underlying allegation.
5. The GCRO nevertheless operated in practice as an absolute bar because the up-front application fee consumed most of Mr Gray’s available monthly income. A restraint order was intended to operate as a permission filter, not a total ban. The access-to-justice mechanism identified by Warby J was only a partial solution because it required uncertain judicial review proceedings.
6. The court had to weigh the risk of stifling a well-founded claim against the risk of further unmeritorious litigation. Mr Gray had previously succeeded in two claims, and the court could not conclude that all his potential claims lacked substance. Other safeguards remained available, including strike-out, summary judgment and further findings that applications were totally without merit.
7. The balance just favoured ending the order. The GCRO was not extended and ceased to have effect when judgment was handed down. The judge warned that renewed vexatious litigation could lead to a further civil restraint order or an application by the Attorney-General under s.42 of the Senior Courts Act 1981.

This was a first-instance application in the High Court. The judgment records that:

• Teare J made the original GCRO in November 2014.
• Warby J extended it in November 2016 and made provision addressing the potential access-to-justice problem.
• The present court independently refused a further extension.