Cheryl Plummer v Joshua Jacob Friedlander

A general civil restraint order requires persistent issuing of claims or applications that are totally without merit, where an extended civil restraint order would be insufficient or inappropriate. At least three claims or applications are required, but the court must evaluate the party’s overall conduct. It may consider previous applications, including those not certified as totally without merit when made. Repeated attempts to relitigate decided issues, hopeless claims, procedural non-compliance, confusing presentation, non-payment of costs and evidence of coordinated vexatious litigation may together justify the order.

The defendant applied for a general civil restraint order against the claimant. The application followed five sets of County Court proceedings concerning the claimant’s sale of property to the defendant, together with further proceedings involving the claimant or an apparently connected entity. The County Court proceedings had all been dismissed or struck out, and six claims or applications were found to have been totally without merit. Further High Court applications had also been dismissed or certified as totally without merit. The claimant received notice but did not attend or participate. The central issue was whether her conduct met the requirements for a general civil restraint order.

1. Application granted. A general civil restraint order was made against the claimant.
2. The threshold is that the person concerned persists in issuing claims or applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate. Under the guidance in Sartipy v Tigris Industries Inc [2019] EWCA Civ 225, at least three claims or applications are required. The question of persistence nevertheless requires an evaluation of the party’s overall conduct.
3. The court may take account of previous applications and is not confined to claims or applications certified as totally without merit at the time. The judge therefore treated several applications as totally without merit even though the original orders had not used that expression, including a hopeless pre-action disclosure application and an application for permission to appeal an order striking out wholly unmeritorious proceedings.
4. The claimant had brought five sets of proceedings arising from the same complaint. Six claims or applications were either expressly certified as totally without merit or found retrospectively to meet that description. The proceedings repeatedly sought to relitigate matters already decided.
5. Additional proceedings before Master Kaye, together with unchallenged evidence of connections with a person subject to a section 42 vexatious litigant order, supported the conclusion that further vexatious proceedings were likely. The factual similarities with the litigation examined in Smith v Marston Holdings Ltd & Anor [2022] EW Misc. 23 (CC) materially supported that inference.
6. Failure to serve essential documents, missed deadlines, disorganised presentation, use of accommodation addresses and unpaid costs did not independently justify the order, but were relevant to the appropriate restraint and reinforced the overall assessment. The judgment was directed to be published to assist other courts in identifying the relevant conduct.