Banner Universal Motion Pictures Limited v Wiggin LLP & Anor

An extended civil restraint order may be made where a litigant has persistently issued claims or applications which are totally without merit. The court must assess objectively whether further abusive litigation is likely and select an order that is just and proportionate to the identified risk.

The relevant conduct may be attributed to a person who is the real party behind proceedings brought in a company’s name, even if that person was not a named party. A civil restraint order regulates qualifying future litigation; it does not deny access to the courts or prevent properly arguable matters from proceeding.

The appellant sought to set aside an order refusing permission to appeal and to relist an oral permission hearing. The application was dismissed and certified as totally without merit. The court was then required by CPR PD 3C to consider whether to make a civil restraint order.

The litigation arose from a long-running dispute concerning alleged copying of a television-game-show format. The appellant company had brought proceedings against its former and opposing solicitors, followed by repeated unsuccessful appeal-related applications. Mr Banner, the company’s sole director, had directed the proceedings and personally represented the company. The central issue was whether the history justified an extended, rather than proceedings-limited or general, civil restraint order.

1. Order made. The application to set aside the order of Richard Smith J dated 28 June 2024 and to relist the oral permission hearing was dismissed and certified as totally without merit. An extended civil restraint order was granted against Banner Universal Motion Pictures Limited and Mr Banner personally.
2. Applicable test. Under CPR PD 3C, para 3.1, an extended order may be made where a party has persistently issued claims or made applications which are totally without merit. The court considered three questions: whether there had been persistent totally meritless litigation; whether an objective assessment showed a risk of further abusive claims or applications unless restrained; and what order was just and proportionate to address that risk.
3. Scope of persons covered. The word party is sufficiently wide to include the real party behind unmeritorious claims or applications, even where that person was not named as a party. The court therefore treated Mr Banner’s conduct as relevant notwithstanding that the proceedings had been issued by his company.
4. Application of the test. The repeated certifications of total lack of merit, the persistent refusal to accept adverse decisions, and the continuation of the conduct across Swedish proceedings, High Court proceedings and the appeal established the required persistence and an objectively demonstrated risk of further abuse.
5. Proportionality. A civil restraint order limited to the present proceedings would not provide adequate protection. A general civil restraint order was not justified. An extended civil restraint order was the proportionate response.

• High Court, Chancery Appeals. Mr Justice Mellor dismissed the application to set aside Richard Smith J’s order refusing permission to appeal and refused to relist the oral permission hearing. The application was certified as totally without merit, and an extended civil restraint order was imposed.
• High Court, Chancery Division. Deputy Master Linwood granted summary judgment for Wiggin LLP and Fox Williams LLP and certified the claims as totally without merit: [2024] EWHC 656 (Ch).