Timothy Perkin & Anor v Christopher Henry Hawkins & Anor

An extended civil restraint order requires at least three totally without merit claims or applications, but that numerical threshold is only the starting point. The court must assess the party’s overall conduct and whether the conduct is persistent, including whether issues are being repeatedly relitigated. Only claims or applications issued by the party as claimant, counterclaimant or applicant count towards the threshold, although other misconduct may illuminate overall conduct once persistence is established. Satisfaction of the trigger does not require an order. The court must objectively assess the risk or threat level and decide whether an extended order is justified and necessary.

The fixed charge receivers of commercial premises sought an extended civil restraint order against the respondents under Practice Direction 3C to the Civil Procedure Rules 1998. The proposed order would have restrained both respondents from making any claim or application in either the High Court or County Court concerning the receivership.

Each respondent had made applications certified as totally without merit. Earlier orders had dismissed those applications but had not imposed a civil restraint order. The property was subsequently sold, and neither respondent had made any further claim or application since 15 November 2024. The first respondent had also served statutory demands and was subject to an injunction, while the second respondent had served a cease-and-desist notice.

The central issues were whether each respondent had persistently issued totally without merit claims or applications and whether the evidence justified an extended, or any limited, civil restraint order.

1. Application dismissed. The receivers’ application for an extended civil restraint order was dismissed against both respondents. The court was also not satisfied that a limited civil restraint order was appropriate.
2. Paragraph 3.1 of Practice Direction 3C to the Civil Procedure Rules 1998 requires at least three totally without merit claims or applications as the minimum threshold. A claim and applications made within it may each be counted where each is totally without merit.
3. Persistence requires an evaluation of the party’s overall conduct. Repeated attempts to relitigate decided issues may demonstrate persistence, whereas three unrelated applications made many years apart may not. Only claims or applications in which the party is claimant, counterclaimant or applicant count towards the threshold. Other misconduct may illuminate overall conduct once the necessary persistence is established by qualifying claims or applications.
4. Satisfaction of the trigger does not compel an extended order. The court retains a discretion and must objectively assess the risk or threat level, deciding whether an order is justified and what form it should take. An extended order should be made only where a limited order would be insufficient.
5. The evidence did not show a real risk of further unmeritorious applications or renewed relitigation. The first respondent’s statutory demands were not claims or applications and could be considered only if persistence were otherwise established. The proposed restraint was also too broad in practical effect.