Joshua John Fernie v Burton Waters Management Ltd

A civil restraint order may be made where a litigant persistently issues claims or applications which are totally without merit. Persistence requires an irrational refusal to accept the court’s decisions, but not habitual conduct. The court may restrain a person who is not the named claimant where that person is the real claimant or applicant and is driving the litigation. The jurisdiction extends to tribunal proceedings through the High Court’s inherent jurisdiction. The court must act proportionately and incrementally, selecting the least extensive order sufficient to protect court resources from further abuse.

The judgment concerned applications for costs and civil restraint orders arising from lengthy litigation connected with Burton Waters. Darren Fernie, the claimant’s father, had acted as the principal driver of the proceedings and related applications, although he was joined only as a third party for costs purposes. Joshua John Fernie had largely disengaged from the litigation.

The court considered whether the defendants’ evidence of repeated totally without merit findings established persistence, whether orders could be made against both Fernies, and whether restraint could extend to proceedings in tribunals. The court also considered the appropriate duration and scope of any orders.

1. The court made a General Civil Restraint Order against Darren Fernie and Joshua John Fernie for two years. The orders were to follow Form 19B, with additional terms extending them to tribunal proceedings pursuant to the court’s inherent jurisdiction.
2. Under CPR 3.11 and Practice Direction 3C, a Limited Civil Restraint Order may follow two totally without merit applications. An Extended Order requires persistent claims or applications which are totally without merit. A General Order is justified where persistent conduct is so varied or extensive that an Extended Order is insufficient or inappropriate.
3. Persistence does not require habitual conduct. It requires an irrational refusal to accept adverse decisions, as explained in Bhamjee v Forsdick & Ors (No 2) [2003] EWCA Civ 1113. The rule-based regime does not require proof of a separate form of vexatiousness, as explained in R (Kumar) and the Secretary of State for Constitutional Affairs [2007].
4. The court was entitled to treat earlier express findings that applications were totally without merit as conclusive for the summary CRO application. It should not reopen or retry those decisions; the appropriate remedy was an appeal. The court adopted the reasoning in Crimson Flower Productions Ltd v Glass Slipper Ltd [2020] EWHC 942 (Ch).
5. A CRO may be made against a non-party who is the real claimant or applicant, or who is associated with the named litigant and is driving the litigation. The court applied the reasoning in Hurst & Anor v Denton-Cox [2014] EWHC 3948 (Ch) and CFC 26 Ltd & Anor v Brown Shipley & Company Ltd [2017] EWHC 1594 (Ch).
6. The court’s discretion must be exercised proportionately and incrementally, having regard to the threat of further unmeritorious litigation. The history showed persistent conduct, repeated allegations, non-payment of costs and an intention to continue. A two-year General Order was sufficient at that stage; a longer period was unnecessary.
7. The conduct in tribunal proceedings could be considered, and the High Court could restrain future tribunal proceedings under its inherent jurisdiction. The court relied on The Law Society of England and Wales v Otobo [2011] EWHC 2264 (Ch).

The judgment records that an earlier application for recusal had been appealed unsuccessfully. The present decision was made at first instance on applications for costs and civil restraint orders.