Michael Wilson & Partners, Limited v John Forester Emmott

An extended civil restraint order requires two separate stages. First, the court must have jurisdiction because the party has persistently issued claims or made applications that are totally without merit. Secondly, the court must decide, in its discretion, whether an order is justified by all the circumstances.

The discretionary assessment must balance protection of other court users against the party’s Article 6 right of access to the courts. An extended order is a permission filter, not an absolute prohibition on litigation, and its scope is confined to claims connected with the subject matter of the proceedings in which it is made. The duration and breadth of the order must remain proportionate.

The judgment concerned applications for civil restraint orders against Michael Wilson & Partners Limited in a series of claims involving John Forester Emmott and in claim CL-2021-532. The issue came before the Commercial Court both on remission from the Court of Appeal and on applications by successful defendants in the 532 Claim.

The court considered whether the jurisdictional threshold for an extended civil restraint order was met and, if so, whether such an order should be made, in what form and for how long.

1. The court held that an extended civil restraint order involved two stages. The jurisdictional requirement was that the party had persistently issued claims or made applications that were totally without merit. If that requirement was met, the making of an order remained discretionary and required an evaluation of all the material circumstances.

2. The jurisdictional requirement was satisfied. The Court of Appeal had already so held in relation to its remission. In addition, numerous earlier orders had identified applications or claims as totally without merit. The court also applied the test approved by Males LJ at paragraph 27 of Sartypi v Tigris Industries Incorporated [2019] EWCA (Civ) 225.

3. A limited order would have no practical utility, particularly because the 532 Claim had been struck out. A general order would be disproportionate because it might adversely affect MWP’s ability to conduct litigation for clients. An extended order was sufficiently wide to control the conduct justifying restraint.

4. The court gave substantial weight to the persistent issue of prolix, irrelevant and procedurally defective material, repeated pursuit of applications found to be totally without merit, and the resulting delay, expense and potential unfairness to opponents and the court. MWP’s success in other proceedings did not answer the application, since a civil restraint order was directed only to claims or applications falling within its terms.

5. The effect of an extended order was an Article 6-compliant permission filter, rather than a complete bar on issuing proceedings. Its scope was confined to claims connected with the subject matter of the relevant proceedings. Balancing protection of court users against access to justice, the court made extended civil restraint orders for 18 months in the Emmott claims and the 532 Claim. Draft orders were to be submitted for approval and sealing.

• Court of Appeal — An order sealed on 12 July 2022 remitted the question of an extended civil restraint order to the Commercial Court. An order sealed on 3 October 2022 set aside the earlier order but dismissed MWP’s application again and marked it totally without merit.
• High Court (Commercial Court) — The court proceeded to determine the civil restraint order issue and made extended orders for 18 months.