Nelson Richardson, R (on the application of) v London Borough of Lambeth & Anor

The court may proceed in a litigant’s absence where the litigant has adequate notice, repeated opportunities to attend, and the circumstances provide no sufficient reason for further delay. Applications seeking to reopen final orders are subject to strict limits, must be made promptly, and allegations of fraud must be brought by the proper procedure and pleaded clearly and particularly. Judicial review cannot be used to relitigate grounds already rejected. An extended civil restraint order may be appropriate where a litigant persistently makes totally without merit applications across multiple proceedings.

The claimant had brought a series of planning-related judicial reviews and applications concerning premises at Clapham High Street. The court considered applications to set aside earlier orders for alleged bias, procedural invalidity and fraud, an application for permission to bring a further judicial review, and applications by the defendants for extended civil restraint orders.

The claimant sought an adjournment and did not attend the hearing. After adjourning briefly and considering the circumstances, the court proceeded in his absence. The central issues were whether the applications could reopen final decisions, whether the proposed judicial review grounds were arguable, and whether the claimant’s repeated litigation justified an extended civil restraint order.

1. Proceeding in the claimant’s absence. The court proceeded under CPR 23.11. The claimant had known of the hearing for some time, had made a last-minute adjournment application, had failed to engage with listing arrangements, and had not attended despite short adjournments. The defendants had strong cases and there was no sufficient barrier to proceeding.
2. Applications to reopen earlier orders. The applications concerning the earlier judicial reviews were dismissed and certified as totally without merit. The orders had been finally determined, the applications were not made promptly, and the alleged fraud matters had substantially been raised previously. The jurisdiction under CPR 3.1(7) was confined to very rare circumstances. An allegation that orders were obtained by fraud should be brought by a fresh action or on appeal, and fraud must be pleaded with clarity and particularity.
3. Further judicial review. The proposed challenge concerning section 104 of the Town and Country Planning Act 1990 was unarguable. The claimant had not previously asked the Secretary of State to make a decision under that section, and the same alleged failure had already been rejected in earlier proceedings. In any event, exercising the power required consultation, a decision that an order was expedient, and notice and an opportunity to be heard for affected persons. Refusal to exercise the discretion was not irrational on the facts. Article 6 was not engaged because the ministerial correspondence did not determine civil rights and obligations.
4. Restraint order and costs. The claimant’s persistent totally without merit applications across several proceedings justified an ECRO. A limited civil restraint order was inadequate because the litigation extended across multiple claims and applications. The claimant was ordered to pay the defendants’ relevant costs, with consolidated schedules to be submitted.

The judgment describes earlier procedural stages:

• High Court: permission in Judicial Review 1 was refused at renewal, resulting in [2020] EWHC 2705 (Admin).
• Court of Appeal: permission to appeal and an application to reopen the order were refused. Later appeals concerning Judicial Reviews 2 and 3 were also refused or not validly pursued.
• High Court (Planning Court): the present court dismissed the claimant’s applications and made an extended civil restraint order.