Future Publishing Ltd v Edge Interactive Media Inc & Ors

A civil restraint order may be made where the statutory or procedural threshold is met and the court identifies a real risk of further totally meritless claims or applications. An extended order requires at least three earlier claims or applications certified as totally without merit. The later court does not sit on appeal from those certificates. It may, however, decline to count a certificate where fairness or procedural circumstances make reliance on it inappropriate. The court may consider the conduct of the real party behind proceedings, while the order is directed against the person properly before it.

Following earlier litigation and numerous applications concerning contractual rights, costs orders and related proceedings, Dr Langdell made a further application which Henry Carr J dismissed on the papers and certified as totally without merit. That order directed a hearing to determine whether a civil restraint order should be made.

The claimant did not attend the hearing. Dr Langdell appeared in person and opposed the order. The issue was whether the court had jurisdiction to make a limited or extended civil restraint order, whether the relevant earlier certificates could be relied upon, and whether an order should be made in light of the risk of further applications.

1. The court had jurisdiction to make a limited civil restraint order because Dr Langdell had made at least two applications certified as totally without merit. It also had jurisdiction to make an extended order because the procedural history showed that he had persistently issued claims or made applications which were totally without merit. The meaning of “persistently” required at least three earlier such claims or applications, following Sartipy v Tigris Industries Inc [2019] EWCA Civ 225.

2. A later court asked to make a civil restraint order does not review an earlier certificate that a claim or application was totally without merit. It does not act as an appellate court from that certificate, following R (Kumar) v Secretary of State of Constitutional Affairs [2007] 1 WLR 536, Supperstone v Hurst [2009] 1 WLR 2306 and Courtman v Ludlam [2010] BPIR 98.

3. The certificate made by Henry Carr J on 26 March 2019 was not counted. Although the application was likely totally without merit, the possibility that Dr Langdell had been entitled to an oral hearing, and the disproportionate time required to determine that issue, justified putting that certificate aside. Four other certificates were sufficient.

4. The court exercised its discretion to make an extended civil restraint order. There was a real risk of further inappropriate applications concerning the alleged power of attorney and an appreciable risk of further applications concerning costs orders. The order was made against Dr Langdell alone because the hearing direction and the claimant’s request referred only to him, although the court considered the conduct of the defendants collectively and applied the principle that a civil restraint order may bite on claims brought by a “real” claimant or applicant behind the named party, as discussed in CFC 26 Ltd v Brown Shipley & Co Ltd [2017] 1 WLR 4589 and approved in Sartipy v Tigris Industries Inc [2019] EWCA Civ 225.

5. An interim order in the terms of paragraph 3 of CPR PD 3C was made with immediate effect pending perfection of the extended order. The extended order was to continue for two years from the date of judgment.