Desalu & Anor v Holmes

A limited civil restraint order may be made where the threshold in Practice Direction 3C is met by repeated applications dismissed as totally without merit. The court may consider the parties’ wider history of hopeless applications when deciding whether the order is necessary and proportionate to protect court and opponent resources. The order may extend to related enforcement and appeal proceedings. A limited order restricts applications for two years, while preserving the ability to challenge the restraint order itself or seek permission to appeal it.

The defendants had repeatedly sought to set aside or appeal a default judgment and an order for sale made in County Court enforcement proceedings. Several applications were dismissed as totally without merit. The first defendant then sought permission to appeal a further refusal of permission, which the High Court dismissed on paper as totally without merit and directed should be followed by a hearing of the claimant’s application for a limited civil restraint order.

The defendants did not attend the hearing. The central issues were whether the procedural threshold was satisfied, whether a restraint order was necessary and proportionate, and the proper scope of any order.

1. Application granted. A limited civil restraint order was made against both defendants in the County Court enforcement proceedings and the High Court appeal proceedings.
2. The threshold under Practice Direction 3C was satisfied. The second defendant had two applications dismissed as totally without merit, and the first defendant had two such applications dismissed, including his application for permission to appeal to the High Court.
3. The court was entitled to consider the wider litigation history. There had been numerous additional hopeless applications, including attempts to reopen matters determined years earlier. The defendants were equally culpable in pursuing applications that had no proper merit.
4. The order was necessary and appropriate to prevent further waste of the claimant’s resources and the court’s resources. It was proportionate to make a limited rather than an extended order at that stage.
5. The order applied for two years to other applications by either defendant in the enforcement or appeal proceedings. It did not prevent an application to set aside the limited order or an application for permission to appeal it. The court warned that further totally without merit applications in other proceedings might justify conversion to an extended order.
6. On summary assessment, the defendants were ordered to pay the claimant’s costs of the application in the sum of £4,767 including VAT.

• Bromley County Court: entered a default judgment for approximately £26,000 and later made an order for sale of the defendants’ property. Applications to set aside or appeal were repeatedly dismissed.
• High Court (Chancery Division): dismissed the first defendant’s application for permission to appeal on 12 May 2020 as totally without merit and then made limited civil restraint orders after hearing the claimant’s application.