Middlesbrough Football & Athletic Company (1986) Ltd v Earth Energy Investments LLP & Anor

An extended civil restraint order may be made by a judge authorised to sit as a deputy High Court judge. An application to discharge or vary such an order is available under Practice Direction 3C, but the finality of judicial orders substantially limits that jurisdiction. The usual grounds are a material change of circumstances or a material misstatement of the facts underlying the order.

Three applications which are totally without merit satisfy the jurisdictional threshold for an extended civil restraint order. The court must then decide whether the order is appropriate in all the circumstances. A litigant cannot use repeated applications to reopen unappealed orders, advance claims belonging to companies in liquidation, or obtain summary determination of disputed contractual claims.

The proceedings concerned an application by Paul Millinder to discharge an extended civil restraint order made by HHJ Pelling QC on 28 June 2018. The order restrained him from issuing claims or making applications concerning the underlying litigation without permission.

The order followed three applications which HHJ Pelling had found to be totally without merit. Mr Millinder challenged the jurisdiction to make the order, the jurisdiction to discharge it, and the findings concerning the applications, alleged non-disclosure, the winding-up of companies he had controlled, and alleged contractual claims against Middlesbrough.

The central issues were whether the order had been validly made and whether any material change of circumstances, misstatement of fact, or other exceptional circumstance justified its discharge.

1. Jurisdiction to make the order. A person authorised to act as a deputy High Court judge under section 9(1) of the Senior Courts Act 1981 is, subject to specified exceptions, treated as a High Court judge for all purposes under section 9(5). HHJ Pelling therefore had jurisdiction to make the extended civil restraint order.
2. Jurisdiction to discharge. Paragraph 3.2(2) of Practice Direction 3C gives a person subject to an extended civil restraint order a route to apply for amendment or discharge, with permission. The jurisdiction must be exercised consistently with the strong public interest in finality. The usual grounds identified in the authorities are a material change of circumstances or a misstatement of the facts on which the original order was made. Other out-of-the-ordinary circumstances cannot be excluded.
3. Underlying orders and corporate status. Mr Millinder could not use the application to rehear unappealed decisions. Once the companies had entered compulsory liquidation, their claims belonged to the liquidators. Mr Millinder had no standing to bring proceedings in their names. Disputed contractual and fraud issues could only be resolved in properly constituted proceedings, ordinarily involving a trial under CPR Part 7; they could not be determined summarily in the insolvency applications.
4. Totally without merit applications. The first application impermissibly sought to reopen the consent order after Earth Energy had accepted continuation of the injunction with knowledge of the alleged non-disclosure. The second was misconceived because Mr Millinder lacked standing and sought interim relief without an appropriate substantive claim. The third was also brought without standing and sought to reopen an unappealed order. Each was therefore totally without merit. The threshold for an extended civil restraint order was satisfied, and the discretion to make it was properly exercised.
5. No new evidence, material change of circumstances, or material misstatement had been established. The allegations of fraud and conspiracy were unsupported. The application to discharge the order was dismissed, and the extended civil restraint order remained in force.

The judgment concerned a first-instance application to discharge an extended civil restraint order. The judgment records earlier interlocutory and insolvency orders, none of which had been appealed, but does not state an appellate decision from which this judgment arose.