Annmarie Smalling-Small v Home Office West Midlands

This is an application under CPR 3.3(5) to set aside a limited civil restraint order made on 29 July 2025. The court refused to set the order aside because the applicant had repeatedly issued applications certified as totally without merit and had attempted to relitigate concluded judicial review proceedings from 2004. The court held that attempts to deploy section 9 of the Human Rights Act 1998 as a route to re-open the earlier refusals were misconceived: any free-standing claim in respect of an alleged incompatible judicial act must be brought in the High Court and within one year of the act.

The judge applied CPR 3.3(4), CPR 3.11 and Practice Direction 3C and concluded a limited civil restraint order was proportionate to prevent further misuse of court resources. The application to set aside the restraint order was dismissed because further attempts to re-open or relitigate the 2004 matters would be bound to fail and were an unfair drain on public and judicial resources.

Background and parties

The applicant, a Jamaican national, challenged a limited civil restraint order made on 29 July 2025. The factual background arises from events in 2004: detention in May 2004, an interim stop on removal and a bail hearing on 8 June 2004, an application for permission to apply for judicial review dated 28 May 2004 and a refusal of permission by Collins J. on 17 September 2004. The applicant was removed to Jamaica in about November 2004. Subsequent attempts to re-open and relitigate those matters led to the proceedings before this Court.

Procedural history to this Court

• Collins J. refused permission to apply for judicial review on 17 September 2004.
• Cranston J. refused an application to re-open and certified it as totally without merit (29 July 2016; sent 2 August 2016).
• The applicant sought permission to appeal Cranston J.'s order (application dated 20 December 2024); permission and extension of time were refused by this Court on 14 May 2025.
• The applicant applied under CPR 52.30 to re-open; that application was refused on 19 June 2025 and certified totally without merit.
• A further application, relying on section 9 of the Human Rights Act 1998, was refused and certified totally without merit on 29 July 2025; a limited civil restraint order was made the same day.
• The present application to set aside that limited civil restraint order was heard by video link on 13 August 2025 and refused in judgment delivered 14 August 2025.

Nature of the application and issues

The applicant sought to set aside the limited civil restraint order so that she could pursue (a) a fresh or re-opened judicial review of the 2004 removal decisions and (b) a free-standing claim under section 9 of the Human Rights Act 1998 for damages in respect of alleged unlawful judicial acts. The court framed the issues as whether the limited civil restraint order was properly made given the applicant's history of totally unmeritorious applications, and whether the section 9 route could properly be used to re-open concluded appellate decisions.

Court’s reasoning and disposition

The court reiterated that a limited civil restraint order is available where a party has made two applications certified as totally without merit (Practice Direction 3C). Two recent applications by the applicant had been so certified. The court analysed the applicant's reliance on section 9 HRA 1998 and concluded any free-standing claim for damages for an allegedly incompatible judicial act must be brought in the High Court and within one year of the relevant acts; the applicant had not complied with those requirements. The attempted use of section 9 as a basis for re-opening the refusal of permission was therefore misconceived. Given the history of repeated and totally unmeritorious applications, their consumption of scarce judicial resources and the absence of any realistic prospect of success, the judge concluded the limited civil restraint order was proportionate and should remain in place. The application to set it aside was dismissed.

The application to set aside the limited civil restraint order is dismissed. The court held that the applicant had made repeated applications certified as totally without merit and had attempted to relitigate concluded 2004 proceedings. Attempts to rely on section 9 of the Human Rights Act 1998 were misconceived because any free-standing claim for damages for an allegedly incompatible judicial act must be brought in the High Court and within one year. Given the misuse of court resources and the absence of any realistic prospect of success, the limited civil restraint order was appropriate and remains in force.

The proceedings arise from an original refusal of permission to apply for judicial review by Collins J. on 17 September 2004. An application to re-open was refused and certified as totally without merit by Cranston J. on 29 July 2016 (sent 2 August 2016). The applicant sought permission to appeal in December 2024; permission and an extension were refused by this Court on 14 May 2025. Applications under CPR 52.30 to re-open the refusal were refused on 19 June 2025 and 29 July 2025 and were certified as totally without merit; a limited civil restraint order was made on 29 July 2025. The present application under CPR 3.3(5) to set aside that restraint order was heard 13 August 2025 and refused on 14 August 2025. The Court cited Gopee v Crown Court at Southwark [2023] EWCA Civ 881 (para. 47) when explaining the right to an oral hearing on an application to set aside a restraint order.