KKK v Elena Tsirlina

The court may proceed with an application in a party’s absence where the party was properly notified, had a reasonable opportunity to prepare, and was offered an alternative means of attending. A limited civil restraint order is appropriate where there have been at least two applications that are totally without merit, but it should preserve legitimate routes of appeal and applications for relisting. Indemnity costs are justified where a party’s conduct takes the litigation substantially outside the norm. Summary assessment may be appropriate for discrete one-day hearings, while costs arising from further hearings may require detailed assessment and a payment on account.

The claimant brought proceedings alleging breach of contract and confidentiality. His claim had previously been struck out and reverse summary judgment had been granted. He applied to set that decision aside and also sought the judge’s recusal. Those applications were dismissed as totally without merit. The present consequential hearing concerned the claimant’s absence, the discharge of an anonymity order, a limited civil restraint order, restrictions on future communications, and costs.

The claimant had notice of the hearing, had provided extensive written material, and had been offered attendance by video link. The central issues were whether the court should proceed in his absence, whether the conditions for a civil restraint order were met, and what costs orders were appropriate.

1. Proceeding in the claimant’s absence. The court proceeded under CPR 23.11 because the claimant had been informed of the hearing, had had ample opportunity to prepare and make written submissions, and had been offered a video-link facility which he did not use. The rule also preserved a safeguard through an application for relisting.
2. Anonymity. The anonymity order was discharged. Its purpose was to protect the claimant and enable him to present evidence and submissions, but the claimant had failed to establish a substantive evidential foundation for continued protection and the order no longer served a useful purpose.
3. Civil restraint order. CPR 3.3(9) required the court to record that applications were totally without merit and to consider whether a civil restraint order was appropriate. Under Practice Direction 3C, a limited order was permitted because there had been two or more totally meritless applications. The order restrained further applications in the proceedings without the identified judge’s permission. It did not prevent a legitimate appeal, an application for relisting under CPR 23.11, or an application to the European Court of Human Rights.
4. Communications and alleged breach. The court required the claimant to communicate only through identified routes, backed by a penal sanction. The defendant’s circulation of draft orders to the court and claimant did not breach the anonymity order or constitute contempt.
5. Costs. Applying the approach stated in Excelsior Commercial & Industrial Holdings Ltd v Salisbury [2002] EWCA Civ 879, the claimant’s repeated non-compliance, disproportionate communications, meritless applications, unsupported allegations and failures to attend took the case far outside the norm. Costs were therefore assessed on the indemnity basis. Costs of £70,663.13 relating to the original claim and strike-out application were summarily assessed. Costs arising from later hearings were directed to detailed assessment, with a £40,000 payment on account under CPR 44.2(8).