AEY v AL

An expiring extended civil restraint order does not continue automatically. The court must decide whether extension is appropriate, having regard to all the circumstances. It must not simply reconsider whether a fresh order would now be justified or give double weight to the conduct that justified the original order. The earlier conduct remains relevant because it provides context for assessing the likelihood of further vexatious conduct. Subsequent applications, including applications filtered by the order, may demonstrate a continuing risk to parties and to the administration of justice. An extension may be made for up to two years on any occasion, but its duration must remain proportionate to the continuing risk.

In November 2018, the court made an extended civil restraint order against AEY after refusing seven applications for permission to appeal as totally without merit. The order required applications within its scope to be made to the judge who made it and was due to expire in November 2020.

After reviewing seven further applications, most of which were refused and several of which were certified as totally without merit, the court considered of its own motion whether the order should be extended. AEY did not provide submissions addressing that issue. The central question was whether the continuing evidence justified extending the order and, if so, for how long.

1. The extended civil restraint order was extended until midnight on 22 November 2022. The judge would continue to determine any application falling within its scope.

2. Under paragraph 3.10 of Practice Direction 4B to the Family Procedure Rules 2010, an extended civil restraint order may be extended where the court considers that appropriate, but not for more than two years on any occasion.

3. Applying the approach in Ashcroft and Another v Webster [2017] EWHC 887 (Ch), the court must not start again by asking whether a fresh extended civil restraint order would now be justified. That would give double credit for the applications that supported the original order. The extension question is distinct and turns on whether continuation is appropriate in all the circumstances.

4. The conduct leading to the original order remains relevant as context. It assists the court in assessing the likelihood and motivation of further vexatious conduct and does not amount to impermissible double counting.

5. There was no presumption that the order should continue. The evidence had to establish that extension was appropriate. AEY’s repeated attempts to relitigate matters, his failure to accept adverse decisions and the number and character of his subsequent applications established a clear and serious continuing risk of distress to AL and the children, together with an unacceptable burden on judicial and administrative resources.

6. A shorter extension would not adequately address the risk. The lapse of a further six months or year was unlikely to produce sufficient change in AEY’s behaviour.

The judgment records that an extended civil restraint order was made against AEY on 26 November 2018. The present court subsequently extended that order until midnight on 22 November 2022.