Dharam Prakash Gopee v The Crown Court at Southwark

A civil restraint order may be made on the court’s own initiative, without notice or an oral hearing, where the circumstances warrant that course. Fairness does not require an oral hearing in every case. An order made in this way must preserve the affected party’s right under the Civil Procedure Rules 1998 to apply to set it aside.

A party who expressly asks for a set-aside application to be determined without a hearing cannot ordinarily complain when the court does so. A general civil restraint order is justified where the party persists in totally without merit claims or applications and an extended order would be insufficient or inappropriate.

The appellant challenged two Administrative Court orders. Supperstone J had made a general civil restraint order on the court’s own initiative, without notice or a hearing. Swift J subsequently determined and refused the appellant’s application to set it aside on paper. The appellant had expressly indicated on his application notice that he wanted the application decided without a hearing.

Permission to appeal was confined to whether the original order and the refusal to set it aside were procedurally lawful and fair. The merits of the original restraint were outside the appeal. Although that order had expired, the Financial Conduct Authority asked the Court of Appeal to impose a fresh three-year order because seven further totally without merit orders had been made after its expiry.

The central issues were when a civil restraint order may be made without notice or an oral hearing, whether a set-aside application may be determined on paper, and whether the appellant’s subsequent conduct justified a fresh general civil restraint order.

1. The appeals were dismissed. Neither the common law nor article 6 of the European Convention on Human Rights gives a litigant an unfettered right to an oral hearing. Fairness requires an oral hearing only where the circumstances demand one. Under Part 3.3(4) of the Civil Procedure Rules 1998, a court may act on its own initiative without hearing the parties or inviting representations.

2. Supperstone J had power to make the general civil restraint order without notice or a hearing. Part 3.3(5) required the order to state the affected party’s right to seek its setting aside, variation or stay. That safeguard was provided. Civil restraint orders are procedural measures intended to protect other litigants and finite court resources from vexatious proceedings. They do not prevent properly arguable claims because they require only that a judge first grant permission.

3. The circumstances warranted the procedure adopted. There was a very strong case for restraint and a risk of further unmeritorious applications. The order was neither unfair nor contrary to natural justice. Internal court summaries did not have to be disclosed because they were neutral working papers which merely summarised other court documents. It was nevertheless unnecessary and probably inappropriate for the earlier court order to have referred to them.

4. Swift J was entitled to determine the set-aside application without an oral hearing because the appellant had expressly requested that procedure. The words stating that the application would be “heard” by a High Court judge did not require an oral hearing. A judge retains discretion to direct one, and an oral hearing will normally be arranged if requested, but nothing in this case required that course.

5. The mistaken reference to the variation and discharge provision of the original order did not invalidate Swift J’s decision. An application to vary or discharge because circumstances have materially changed, or the original facts were misstated, differs from a Part 3.3(5) set-aside application. The latter permits reconsideration of whether the order should have been made initially, without requiring changed circumstances. Swift J had undertaken that correct inquiry.

6. A fresh three-year general civil restraint order was made. Paragraph 4.1 of Practice Direction 3C requires persistent totally without merit claims or applications and circumstances in which an extended order would be insufficient or inappropriate. Seven such orders across several proceedings and courts after expiry of the earlier order amply satisfied both requirements.

1. Court of Appeal (Civil Division): The appeals were dismissed and a fresh three-year general civil restraint order was made: [2023] EWCA Civ 881.

2. Administrative Court, Swift J: On 28 January 2020, the appellant’s application to set aside the general civil restraint order was refused on paper.

3. Administrative Court, Supperstone J: On 1 October 2019, a general civil restraint order was made on the court’s own initiative, without notice or an oral hearing.

4. Court of Appeal (Criminal Division): On 24 January 2019, after quashing a victim surcharge, the court referred materials to the judge in charge of the Administrative Court for consideration of civil restraint proceedings.