Hussain v Vaswani & Ors

A general civil restraint order made under Practice Direction 3C catches any claim or application in the specified courts unless it expressly excludes it. It can therefore require permission for an application by a contemnor to purge contempt and seek release from prison. The threshold is low where liberty is at stake, but the applicant must still show some merit and an arguable case fit for hearing. Even a totally without merit application need not proceed. Notice requirements may be abridged where urgency requires. Complaints about prison conditions ordinarily concern the prison service, and a renewed application remains possible if supported by better evidence.

Mr Hussain was serving a 12-month sentence of imprisonment for contempt after breaching undertakings to pay sums to the Vaswanis. A general civil restraint order had been made in separate proceedings, restraining him from making applications in the High Court or County Court without permission.

His application to Judge Lethem to purge his contempt and obtain early release was automatically struck out for want of permission. Mann J subsequently dismissed applications for permission on 30 October and 4 November 2020 and refused permission to appeal. The issue before the Court of Appeal was whether the restraint order applied to an application concerning the contemnor’s liberty and, if so, what permission threshold should apply.

Appeal dismissed unanimously. Arnold LJ gave the principal judgment, with which Nugee and Lewison LJJ agreed.

1. The wording of the general civil restraint order was comprehensive. The expression any application included an application to purge contempt and seek release from prison. The order could have been amended to create an exception, and it could have been appealed, but no such application or appeal had been made. Permission was therefore required under Practice Direction 3C.
2. The purpose of a general civil restraint order is to prevent further meritless applications by a litigant with a history of such conduct unless a judge familiar with that history is satisfied that the proposed application has some merit. That purpose applies equally to applications to purge contempt and seek release. There is no rule that even a totally without merit application must proceed merely because the applicant is imprisoned.
3. The permission threshold is low because individual liberty is at stake, but the applicant must still establish an arguable case fit for hearing by the sentencing judge. Mann J applied that test correctly. The material before him did not disclose an arguable basis for challenging the sentence, showing a material change in prison conditions, or demonstrating that the sums could now be paid.
4. The ordinary procedural safeguards also remained relevant. Under Civil Procedure Rules r. 81.10, an application to discharge a committal order must be made by application notice, with the ordinary requirements for service and supporting evidence. The guidance in Swindon Borough Council v Webb [2016] EWCA Civ 152 remained applicable. Seven days’ notice under Practice Direction 3C was not inherently unfair, and urgent cases could be dealt with by abridging time under CPR r. 3.1(2)(a).
5. Temporary release on compassionate or medical grounds was ordinarily a matter for the prison service under rule 9 of the Prison Rules 1999, rather than the sentencing court, as explained in Lexi Holdings plc v Luqman [2008] EWHC 151 (Ch). Medical treatment and prison-category complaints therefore did not establish an arguable case for reduction of the sentence. The absence of the Official Solicitor’s former role did not alter the threshold, particularly given the availability of legal aid, as discussed in Devon County Council v Kirk [2016] EWCA Civ 1221.

The dismissal did not prevent a further application supported by better evidence. The related bail application was not pursued.

1. Court of Appeal (Civil Division) Permission to appeal was granted on one ground. The appeal was unanimously dismissed on 10 February 2021.
2. High Court of Justice, Business and Property Courts, Business List (Chancery Division) Mann J dismissed applications for permission under the general civil restraint order on 30 October and 4 November 2020 and refused permission to appeal on 10 November 2020.