Farid El Diwany v Solicitors Regulation Authority Limited

An extended civil restraint order may be made where a party has persistently issued claims or made applications that are totally without merit, objectively demonstrating a risk of further abuse of the court’s process. “Totally without merit” means bound to fail. Persistence is normally shown by at least three such claims or applications, but it is a qualitative assessment of the party’s overall conduct, including repeated attempts to re-litigate decided issues. Earlier claims or applications may be counted even if they were not certified as totally without merit when disposed of, provided the court can safely conclude that they met that threshold. The order must be no broader than necessary and sufficiently clear to identify the proceedings requiring permission. It regulates access to the courts; it does not exclude properly arguable claims.

The Solicitors Regulation Authority applied for an extended civil restraint order against Farid El Diwany after repeated unsuccessful applications arising from disciplinary proceedings before the Solicitors Disciplinary Tribunal. The application followed the dismissal of Mr El Diwany’s appeal against the Tribunal’s refusal to restore him to the Roll of Solicitors and his unsuccessful application to reopen that determination under CPR r 52.30.

The central issues were whether Mr El Diwany had persistently made applications that were totally without merit, whether there was an objectively established risk of further abusive applications, and what scope and duration of order were just.

1. Application granted. An extended civil restraint order was made for three years, restraining claims and applications in the High Court and County Court concerning matters involving, relating to, touching upon or leading to the relevant disciplinary proceedings, unless permission was first obtained from the specified judge.

2. Under CPR r 3.11 and Practice Direction 3C, the court asked whether the respondent had persistently issued claims or made applications that were totally without merit; whether he had objectively demonstrated that, if unrestrained, he would issue further claims or applications amounting to an abuse of process; and what order was just to address that risk.

3. A claim or application is totally without merit where it is bound to fail. Persistence is not merely quantitative. It requires assessment of the party’s overall conduct, and repeated attempts to re-litigate decided issues may establish persistence more readily than unrelated meritless proceedings. The court may take account of applications not certified as totally without merit at the time, if it can safely determine that they met the threshold.

4. The jurisdictional threshold was met by four applications concerning the disciplinary proceedings, each refused with a certification that it was totally without merit. The respondent’s unsuccessful application to reopen the appeal determination reinforced the conclusion that he persistently made such applications. The evidence objectively established a significant risk of further claims or applications that would be totally without merit and abusive.

5. The scope of a civil restraint order must be no broader than necessary and sufficiently clear. The wording adopted covered matters that were direct or indirect consequences of the disciplinary proceedings, including challenges concerning the Tribunal, the SRA, their personnel, and professional representatives involved in the related proceedings. Background relating solely to the earlier defamation proceedings was not relied upon because it did not strictly arise out of the disciplinary proceedings.

6. A civil restraint order protects the court process from abuse without prohibiting access to justice or preventing properly arguable claims. The order therefore required prior judicial permission rather than imposing an absolute bar.

The judgment records earlier proceedings but is a first-instance decision on the SRA’s application for an extended civil restraint order.

• High Court (Administrative Court): the respondent’s appeal against the 2021 Solicitors Disciplinary Tribunal decision was dismissed in [2022] EWHC 2882 (Admin). The present court then granted the SRA’s application and made the extended civil restraint order.