Scott Halborg & Anor v Albert Halborg & Ors

Permission to appeal from case-management decisions is subject to a high threshold. The proposed appeal must have a real prospect of success or another compelling reason, and the issue must justify the costs and procedural consequences of an appeal. The appellate court will not interfere with a discretionary case-management decision unless it falls outside the generous ambit of discretion.

Civil restraint orders require a structured assessment of persistent totally without merit applications, the objective risk of further abuse, and the justice and proportionality of the proposed order. The court may consider the wider litigation context, including related proceedings. A limited order may extend for the duration of the proceedings where that is necessary and proportionate.

These were grouped applications for permission to appeal from numerous procedural orders made by HHJ Bloom and HHJ Clarke in the County Court at Luton and Oxford. The underlying proceedings comprised a trust dispute between Scott Halborg, Halborg Limited and members of the Halborg family, and a claim against solicitors and counsel involved in that dispute.

The applications challenged case-management directions, costs orders, totally without merit findings, limited and general civil restraint orders, refusal of recusal, payment arrangements and disclosure-related decisions. The central issues were whether the proposed grounds had a real prospect of success, whether the orders were within the lower courts’ discretion, and whether the restraint orders were justified and proportionate.

1. Permission test. Permission was governed by CPR 52.6. The proposed grounds had to show a real prospect of success or another compelling reason. For case-management appeals, CPR PD 52A para 4.6 permitted consideration of the significance of the issue, the procedural consequences of an appeal and whether the issue would be better determined at or after trial.
2. Case-management discretion. Applying Royal & Sun Alliance Insurance plc v T&N Ltd [2002] EWCA Civ 734, and the related guidance in Walbrook Trustees (Jersey) Ltd v Fattal [2008] EWCA Civ 427 and Diriye v Bojaj [2020] EWCA Civ 1400; [2021] 1 WLR 1277, the court would not interfere unless the decision was plainly wrong and outside the generous ambit of discretion. Most challenges to procedural, costs and disclosure orders failed that test.
3. Civil restraint orders. The court adopted the three-stage approach identified in Howell v Evans [2020] EWHC 2729 (QB), following Bhamjee v Forsdick [2004] 1 WLR 88: whether there had been persistent totally without merit applications; whether there was an objective risk of further abuse; and what order was just and proportionate. The wider context of related litigation could be considered. The limited orders were justified by repeated unmeritorious applications, including applications pursued after they had become academic or plainly meritless.
4. The general restraint order was also justified. The court could consider totally without merit orders made in separate proceedings and was not required to hold an oral hearing before making the order. The approach in London Underground Ltd v Mighton [2020] EWHC 3099 was applied. The argument based on Re Ludlam [2009] EWHC 2067 did not establish a rigid minimum number of applications.
5. Permission was granted on limited costs issues and on the question of interest on the payment order. Permission was refused on all other grounds, save that the recusal-related applications were adjourned pending clarification. The stays were lifted and directions were given to progress both underlying claims.

• County Court at Luton and Oxford: HHJ Bloom and HHJ Clarke made the case-management, costs and civil restraint orders challenged in the grouped applications.
• High Court (Queen’s Bench Division): Mr Justice Cotter granted permission on limited grounds, refused permission on the remaining grounds, adjourned the recusal-related applications, lifted stays and gave case-management directions.