Siddiqi v Aidiniantz

Where a litigant has failed to pay a final, unappealed costs order, the court may ordinarily make payment a condition of continuing the litigation. The court must identify the just case-management order under the overriding objective and consider whether enforcement would interfere with Article 6 access to justice.

The burden lies on the litigant asserting that the claim would be stifled. The evidence must address both personal resources and potential third-party assistance. That consideration is material but not conclusive. The court must also consider the defaulting party’s procedural conduct and all the circumstances.

A limited civil restraint order requires at least two totally without merit applications under Civil Procedure Rules 1998, PD 3C, para 2.1.

The claimant brought proceedings arising from a dispute concerning a family business and sought to pursue claims including harassment. Warby J refused permission for proposed amendments to claims in conspiracy, wrongful interference and under the Human Rights Act, while leaving open a possible amended harassment claim: [2019] EWHC 1321 (QB).

Warby J also made final costs orders, with payment required by 14 June 2019. The claimant did not appeal and did not pay. Before Saini J were applications concerning a stay of the proceedings pending payment, a stay of the costs order, relief from sanctions, amendment, and a civil restraint order.

The principal issues were whether continuation of the claim should be made conditional upon payment of the outstanding costs and whether the requirements for a limited civil restraint order had been met.

1. Stay pending payment of costs. The court’s ultimate task was to identify the just case-management order under the overriding objective. The working or default rule was that a litigant should not continue a claim without satisfying an existing, final and unappealed costs order. Payment could therefore be imposed as a condition of continuation, to protect the court’s procedures and preserve the effectiveness of costs sanctions.
2. Access to justice. The condition was subject to Article 6 rights, including the common-law right of access to justice. If the claimant showed that inability to pay would stifle a genuine claim, that was a material consideration against the condition, but it was not conclusive. Following the approach in Crystal Decisions (UK) Limited v Vedatech Corporation and Peak Hotels and Resorts Ltd v Tarek Investments Ltd, the claimant had to provide evidence of inability to pay. The inquiry extended beyond the claimant’s own resources to possible assistance from relatives, friends, business associates or other interested persons. The claimant failed to provide sufficient evidence concerning his own and his wife’s resources, the disposition of substantial earlier receipts, or efforts to obtain assistance.
3. The claimant’s repeated and costly procedural applications, including abandoned applications, supported the imposition of a sanction. The court declined an immediate stay but ordered that, unless the outstanding costs under the 24 May 2019 order were paid within 28 days, the claim would be stayed automatically. No application of any kind could be made during that period.
4. Civil restraint order. The court considered the earlier applications and concluded that they were not totally without merit, despite Warby J having described proposed amendments as hopeless. The precondition of two or more totally without merit applications under Civil Procedure Rules 1998, PD 3C, para 2.1, was therefore not satisfied.
5. The civil restraint application was dismissed. The £6,500 costs of the abandoned amendment application were summarily assessed, but were not made subject to the unless order. No view was expressed on the merits of any proposed amendment.

The judgment records the prior procedural determination by Warby J, who refused permission for proposed amendments while leaving open a possible amended harassment claim: [2019] EWHC 1321 (QB). The present judgment determined subsequent case-management and restraint-order applications; it was not an appeal.