Howell v Evans & Anor

A general civil restraint order may be made where a litigant persistently issues claims or applications which are totally without merit, an extended order would not adequately address the risk, and a general order is just and proportionate. “Totally without merit” means that the claim or application has no rational basis and is bound to fail. The court may consider earlier proceedings which were not formally certified, provided it examines their history sufficiently to reach its own conclusion. The assessment is objective and involves three questions: whether the threshold is met, whether further abuse is likely, and what form of order is appropriate. A general order regulates access to the court but does not extinguish it.

The claimant had brought or pursued numerous claims, applications and appeals against different parties in different proceedings. Several had been certified as totally without merit, while the judge found that others were also totally without merit after reviewing the relevant litigation history.

The court considered whether the claimant had persistently issued hopeless claims or applications, whether he was likely to continue doing so if unrestrained, and whether a limited or extended civil restraint order would sufficiently protect the court and other litigants.

1. General civil restraint order made. The claimant had issued two claims, four applications and an appellant’s notice certified as totally without merit, together with three further applications which the judge found to be totally without merit. These matters arose in five different sets of proceedings involving different defendants and grievances.
2. Under Practice Direction 3C, para 4.2, a general civil restraint order requires persistent issuing of claims or making of applications which are totally without merit, in circumstances where an extended order would not be sufficient or appropriate. The relevant approach involved three questions: whether the threshold was met; whether an objective assessment showed a risk of further abusive litigation; and what order was just and proportionate: Philcox v Wilson [2018] EWHC 3138 (QB); Nowak v The Nursing and Midwifery Council [2013] EWHC 1932 (QB).
3. “Totally without merit” meant that there was no rational basis on which the claim or application could succeed. It was synonymous with a hopeless claim or one bound to fail. A formal certification was effectively conclusive, but the court could also examine earlier litigation and determine for itself whether an uncertified matter was totally without merit: R (Wasif) v Secretary of State for the Home Department [2016] 1 WLR 2793 (CA); R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536.
4. The claimant’s conduct displayed persistence in refusing to accept adverse decisions. He repeatedly renewed applications or sought appeals on the same grounds after earlier failures. The relevant characteristics of persistent litigation identified in Attorney-General v Paul Barker [2000] 1 FLR 759 were present. The fact that “habitual” litigation was not a separate criterion did not remove the need for persistence: Bhamjee v Forsdick (Practice Note) [2004] 1 WLR 88.
5. A limited order would apply only to the current or related litigation. An extended order would also be inadequate because the claimant pursued unrelated grievances against different parties. His scattergun approach justified a general order: R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536. The order was proportionate because it imposed a permission filter rather than preventing access to the court, consistently with R (Mahajan) v Department for Constitutional Affairs [2004] EWCA Civ 946.
6. The general civil restraint order was to remain in force for two years, until 10 September 2022. Any further claim or application by the claimant required permission from the judge or another High Court Queen’s Bench Division judge if she was unavailable.

The judgment concerned first-instance applications for a general civil restraint order arising from the claimant’s earlier litigation. No appellate decision concerning the order was stated in the judgment.