Kehinde Aotunde Odukoya & Anor v Topaz Finance Limited t/a Malanite Mortgages

A deputy High Court judge may make an extended civil restraint order. The relevant test is whether a party has persistently issued claims or applications that are totally without merit. Persistence is assessed by the party’s overall conduct, including repeated attempts to re-litigate the same issue. The threshold of at least three totally without merit claims or applications is necessary but not sufficient. The court must also decide whether an extended order, rather than a limited order, is appropriate. An extended order may restrain claims and applications in either the High Court or County Court concerning, relating to, touching upon or leading to the proceedings. Procedural defaults may be remedied retrospectively where the breach is insignificant, causes no prejudice and an extension is just in all the circumstances.

The claimants’ High Court proceedings challenged the validity of a legal charge over residential property, principally on the basis that the charge had not been countersigned under section 2(3) of the Law of Property (Miscellaneous Provisions) Act 1989. Earlier County Court and High Court applications raising the same argument had repeatedly been dismissed as totally without merit. A limited civil restraint order had already been made in the County Court.

The High Court claim was struck out, and subsequent applications and an appeal were also certified as totally without merit. After dismissing further applications on 7 February 2023, the court adjourned consideration of Topaz Finance’s properly issued application for an extended civil restraint order. The issues were whether time for service should be extended retrospectively and whether the statutory and procedural requirements for an extended order were met.

1. Power to make the order. A deputy High Court judge appointed under section 9(4) of the Senior Courts Act 1981 has power to make a civil restraint order. Section 9(5), together with CPR rule 2.3(1), treats such a person as a judge of the court in which he or she is acting. No relevant exception applied.
2. Late service. Time for service was extended retrospectively under CPR rule 3.1(2)(a). Applying the principles in Denton v T.H. White Ltd [2014] 1 W.L.R. 3926, the breach was insignificant. Service was only two business days late, the evidence was incontrovertible, the application was foreseeable, and no prejudice had been shown. The claimant had also failed to object to the hearing date or attend the hearing.
3. Pending appeal. The application for permission to appeal and any application for a stay did not prevent the order of 7 February 2023 from taking effect. An appeal does not itself operate as a stay. There was no sufficient reason to defer the restraint order, particularly given the continuing burden on the defendant and the court.
4. Statutory threshold. Under Practice Direction 3C, an extended civil restraint order requires persistent issuing of claims or making of applications that are totally without merit. Following Ghassemian Hamila Sartipy (aka Hamily Sartipy) v Tigris Industries Inc [2019] EWCA Civ 225, at least three such claims or applications are required, but the court must still evaluate the party’s overall conduct. Repeated attempts to re-litigate decided issues may establish persistence more readily than unrelated applications.
5. Application and scope. The claimant had made at least five further applications marked totally without merit after the limited order. They all repeated the same legal argument and pursued substantially the same objective, without any relevant change of circumstances. An extended order was therefore appropriate. Its scope properly covered new claims and applications in the High Court or County Court concerning, relating to, touching upon or leading to the proceedings.

An extended civil restraint order was made against the First Claimant.

First-instance decision. The judgment records earlier County Court and High Court orders, including refusals of permission to appeal, but no appeal from the present decision is stated.