London Borough of Camden Council & Anor v Saint Benedict's Land Trust Ltd

A civil restraint order is justified where a litigant has persistently issued claims or applications that are totally without merit, creating a continuing risk of abuse of the court’s process.

The court must assess the litigant’s history, the objective risk of further abusive litigation, and the order that is just and proportionate. The order must be no wider than necessary and should be the least restrictive form shown to be required. A general civil restraint order may be preferable to an extended order where the latter could readily be evaded by changing the subject matter or forum of the litigation.

Saint Benedict’s Land Trust Limited appealed against orders made by District Judge Obodai in winding-up proceedings brought by London Borough of Camden Council. The appeal was dismissed: [2019] EWHC 3370 (Ch). The District Judge had also found two applications totally without merit and transferred the matter for consideration of a civil restraint order.

The present judgment concerned the consequential issue of whether an extended or general civil restraint order should be made, together with permission to seek a leapfrog appeal and costs. The central questions were whether the appellant had persistently made totally without merit claims or applications, whether there was a continuing risk of further abuse, and what order was just and proportionate.

1. Adjournment and permission to appeal. The application to adjourn the hearing was refused. The appellant had ample notice of the hearing and had provided no adequate or verified explanation for its failure to arrange representation. A certificate for a leapfrog appeal was also refused because the proposed questions did not satisfy the statutory criteria. The refusal of permission to appeal from the District Judge’s order was final under Access to Justice Act 1999, section 54(4).
2. Applicable approach. Following Nowak v The Nursing and Midwifery Council and another [2013] EWHC 1932 (QB), the court had to ask: whether the litigant had persistently issued totally without merit claims or applications; whether an objective assessment demonstrated a continuing risk of further abuse; and what order was just and proportionate to address that risk.
3. The court could consider the history of all claims and applications declared totally without merit. It was not confined by a particular period, following Society of Lloyd's v Noel [2015] 1 WLR 4393. It could also take account of earlier claims or applications not formally certified at the time, provided sufficient information was available, applying Sartipy v Tigris Industries [2019] EWCA Civ 225 and R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536.
4. The appellant had made at least seven expressly certified meritless claims or applications within less than two years. Its repeated attempts to reopen decided matters and to adjourn hearings demonstrated persistence and created a real continuing risk of further abuse. The court therefore concluded that restraint was necessary and just.
5. An extended order was insufficient because it could be argued to apply only to historic winding-up proceedings and not to later rates liabilities or litigation in other courts. A general order was consequently the least restrictive order that would adequately address the risk. It did not deny access to justice or prevent the appellant from defending proceedings; it required permission only for new claims or applications within its scope.
6. A general civil restraint order was made for two years, with Supperstone J nominated as lead judge for permission applications. The respondents’ costs were summarily assessed at £20,040.

• High Court (Chancery Division) — the appeal from District Judge Obodai’s order dated 22 February 2019 was dismissed in [2019] EWHC 3370 (Ch). The present judgment dealt with the civil restraint order and consequential matters.