Kerry v Y (Rev 1)

A civil restraint order may regulate applications in proceedings that existed before the order was made, provided its wording covers applications in existing proceedings. An application for permission to appeal is itself an application and may fall within an extended civil restraint order. Restrictions on access to court are compatible with Article 6 where they are clear and proportionate, particularly where a litigant has persistently issued wholly without merit claims or applications. A general civil restraint order is justified where the litigant persists in such conduct and an extended order is insufficient or inappropriate.

The claimant brought three matters concerning civil restraint orders. He appealed against an order striking out his notice of appeal from decisions dismissing harassment claims against Y and X. He also sought to set aside or vary an order refusing permission to join the Ministry of Justice to those proceedings, and applied to set aside a general civil restraint order made in proceedings against the Chief Constable of Humberside Police.

The central issues were whether the extended civil restraint order applied to applications in pre-existing proceedings, whether it unlawfully restricted access to court or protection from harassment, and whether the general order was necessary and proportionate.

1. Appeal dismissed. The application for permission to appeal the harassment decisions was an application within the extended civil restraint order. The order covered applications in any court concerning matters involving, relating to or touching upon the claimant’s criminal proceedings. Those words were broad enough to encompass the harassment claims and the proposed appeal.
2. The order could apply to proceedings commenced before it was made. The court’s power to make a limited civil restraint order expressly covering future applications in existing proceedings, together with its inherent jurisdiction to prevent abuse of process, supported that conclusion. The order’s reference to any application was sufficiently clear to include applications in existing proceedings.
3. The restriction did not breach Article 6. Access to court is subject to clear and proportionate limitations, including restrictions on litigants who have brought hopeless claims. Nor did the order remove the claimant’s legal protection from harassment: a genuine future claim could still be pursued after obtaining permission.
4. The application to set aside or vary the order refusing permission to join the Ministry of Justice was rejected. The proposed joinder lacked an identified arguable cause of action and sought injunctions requiring compliance with an extant court order to be disregarded.
5. The general civil restraint order was justified. The claimant had a substantial record of wholly without merit applications and indicated that he would continue pursuing matters connected with grievances about his criminal proceedings. The existing extended order was insufficient because he disputed its scope and repeatedly sought to challenge its boundaries. The application to set aside or vary the general order was therefore refused.

The judgment determined an appeal, with permission, from HHJ Richardson’s order dated 4 February 2019 striking out the claimant’s notice of appeal. HHJ Richardson’s order concerned an attempted appeal from DJ Pickering’s order dated 11 October 2018.

The court also reviewed Lavender J’s order dated 4 September 2019 and refused the applications to set it aside or vary it, and refused to set aside or vary the general civil restraint order dated 20 May 2019.