David John Frosdick v The Official Receiver

The applicant sought to set aside an Extended Civil Restraint Order made on 17 June 2022 under paragraph 8(1) on the basis that it had been made without reliable evidence and without power. The application relied on alleged failings by the Official Receiver under the Insolvency Rules 1986, rule 6.125(7), and on an argument that the original bankruptcy order should not have been made because the District Judge failed to apply the set-off duty in section 323 of the Insolvency Act 1986.

The court refused the application. It held that the proposed challenges either had already been finally determined in earlier proceedings (including those before Mr Hochhauser KC, Birss J and Foskett J) or would amount to an abuse of process under the Henderson/Henderson (Henderson v Henderson) line of authority as explained in Johnson v Gore-Wood and Aldi. The court also relied on limitation considerations and on the established principle of judicial immunity in relation to negligence claims against judges. The court concluded that the ECRO was properly made because the applicant persistently sought to relitigate matters that were totally without merit.

Background and parties

• The applicant, Mr David Frosdick, is a litigant in person seeking to set aside an Extended Civil Restraint Order made against him by Martin Spencer J on 17 June 2022.
• The respondent was the Official Receiver. The Official Receiver did not appear at the hearing before Mrs Justice Hill.

Nature of the application

The applicant applied by notice dated 15 November 2022 to set aside the ECRO under paragraph 8(1), advancing arguments that the ECRO was made without reliable evidence and without power. He relied on alleged breaches by the Official Receiver of the Insolvency Rules 1986, rule 6.125(7), and argued more broadly that the original bankruptcy order should not have been made because the District Judge failed to apply section 323 of the Insolvency Act 1986 (set-off), rendering subsequent orders void.

Procedural history and issues for decision

• The court considered the long history of related proceedings, including judgments of Andrew Hochhauser KC ([2016] EWHC 3008 (Ch)), Birss J ([2017] EWHC 1737 (Ch)) and Foskett J ([2018] EWHC 1714 (QB)), which had struck out earlier claims and given rise to previous ECROs.
• Key issues framed by the court were (i) whether the rule 6.125(7) complaint gave rise to any viable fresh claim or undermined the ECRO; (ii) whether the section 323 argument could now be used to challenge the bankruptcy order or to support fresh proceedings; and (iii) whether permitting the applicant to litigate would amount to an abuse of process, and whether limitation or judicial immunity barred proposed causes of action.

Court's reasoning and conclusions

• The court accepted that the rule 6.125(7) point had not been fully litigated previously but concluded it was in substance a re-run of the earlier disclaimer-related complaints and was either barred by issue estoppel or would be an abuse of process (Henderson abuse), as already determined by earlier judges and in Griffiths J’s 2020 ECRO reasons, not least given the delay and limitation difficulties.
• The section 323 argument was rejected as an appropriate basis for undoing the long history of orders: the proper route would have been an early challenge to the bankruptcy order by appeal or application to set aside, and attempting now to litigate the point or to bring a negligence claim against judicial office holders would be an abuse and also without merit because of judicial immunity. The court observed that any such claim is also time-barred.
• Overall, for reasons of issue estoppel, abuse of process, absence of merit and limitation, the court dismissed the application to set aside the ECRO.

The judgment therefore dismissed the application and affirmed that the ECRO was properly made to restrain repeated, meritless relitigation of the same core complaints.

The application to set aside the ECRO is dismissed. The judge held that the applicant was persistently attempting to relitigate matters which had been finally determined in earlier proceedings or which would amount to an abuse of process, and that limitation and judicial immunity considerations further undermined the proposed challenges; therefore the ECRO was properly made.