Kilimanjaro AM Ltd v Mann Made Corporate Services (UK) Ltd & Ors

A general civil restraint order may be made where a party has persistently issued claims or applications which are totally without merit and an extended order would be insufficient or inappropriate. The court must assess persistence by reference to the party’s overall conduct, rather than simply count proceedings. Applications need not have been certified as totally without merit at the time. Conduct falling short of a totally without merit application may nevertheless illuminate the overall pattern. The order may be made against a person who is not formally named as claimant or applicant but is the real party controlling the litigation and substantially interested in its outcome.

The First to Third Defendants applied for general civil restraint orders against the Fourth and Fifth Defendants. The underlying company claim had previously been struck out as unauthorised and totally without merit because it had been commenced using fraudulent appointments and forged documents. The Respondents had also been made subject to non-party costs orders and had pursued further applications and appeals. The issue was whether the statutory and procedural threshold for general civil restraint orders was satisfied, including persistence, total lack of merit, the real-party concept, and the insufficiency of an extended order.

1. The application for general civil restraint orders was granted against both Respondents.
2. Applying Sartipy v Tigris Industries Inc [2019] 1 WLR 5892, there must be at least three claims or applications which are totally without merit. A claim and applications made within it may both count. Certification at the time is unnecessary if the judge hearing the restraint application is satisfied that the proceedings were totally without merit.
3. The assessment is not merely numerical. The court must evaluate the party’s overall conduct. Reprehensible conduct which is not itself a totally without merit application may still support the conclusion that restraint is necessary.
4. The order may be made against a person who is the real party behind proceedings, including a person controlling their conduct and having a significant interest in their outcome.
5. The court accepted the distinction explained in R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536: an extended order is confined to matters connected with the proceedings in which it is made, whereas a general order extends to proceedings in the High Court or County Court. The Respondents’ repeated and abusive conduct across unrelated proceedings made an extended order insufficient.
6. The underlying proceedings, the applications before Mann J, and the applications to the Court of Appeal supplied more than the minimum number of totally without merit proceedings. Fraud, forgery, concealment, distorted submissions and repeated litigation abuses demonstrated persistence and justified protection of the court’s process and future defendants.