Christopher Paul Reynard v Nigel Fox & Ors

The apparent-bias test is objective. The court must ascertain all relevant circumstances and ask whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A litigant’s dissatisfaction, criticism or decision to sue the judge does not, without more, require recusal.

An extended civil restraint order may be extended where that is appropriate, having regard to all the circumstances and the continuing threat of vexatious litigation. Previous conduct remains relevant as context, but an extension is not a rehearing of the question whether the original order was justified. Persistent claims or applications means at least three which are totally without merit.

The claimant had conducted prolonged litigation against his former trustee in bankruptcy, former accountants and former mortgagee. He applied to set aside an earlier order which had automatically dismissed applications in two cases and struck out applications in three others.

He alleged that the judge and the Bristol court were disqualified because of apparent bias, judicial errors, prior adverse decisions and his assertion of claims against judges. The court also had to decide the procedural consequences of non-compliance with the extended civil restraint order procedure, whether the remaining application was an abuse of process, and whether existing or new extended civil restraint orders were appropriate.

1. Application dismissed. The applications concerning the two Thomas Westcott claims had been automatically dismissed under Civil Procedure Rules 1998 Practice Direction 3C, paragraph 3, because the claimant had neither notified the proposed respondents nor sought permission. The applications concerning the other three claims were struck out as totally without merit and abusive.
2. The court applied the test in In re Medicaments and Related Classes of Goods (No 2) and Porter v Magill: all circumstances bearing on the suggestion of bias must be ascertained, and the question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The observer is objective, informed of all relevant facts and distinct from the litigant.
3. The claimant’s adverse decisions, criticism and proceedings against the judge did not satisfy that test. The claimant had also lost before judges at different levels and before judges unconnected with Bristol. The judge therefore had no basis to recuse himself.
4. Under Practice Direction 3C, paragraph 3.10, an extended civil restraint order may be extended for up to three years on an occasion where extension is appropriate. The court must consider all the circumstances. It need not reconsider whether the original order should have been made, and the previous conduct remains relevant in assessing the likelihood of further vexatious conduct. There is no presumption that an expiring order continues.
5. Under paragraph 3.1 of Practice Direction 3C, persistence requires at least three claims or applications which are totally without merit. The claimant’s three recent applications met that threshold, even though two had not been formally recorded as totally without merit because they were bound to fail.
6. The court exercised its discretion proportionately. The relevant question was the future threat level, not punishment for past conduct. A limited order would be insufficient, while a general order would be disproportionate. The existing order was extended for three years, and fresh extended orders were made in the other three cases for the same period.
7. The claim for damages based on judicial acts was also outside the available remedies under Human Rights Act 1998, because it did not concern article 5 and the claimant had not pursued an appeal or judicial review.

First-instance decision. The judgment records earlier decisions in the claimant’s related proceedings, but no appeal from the orders under challenge was before the court.