Surinder Grewal v Sarjit Nikki Charkraborty & Ors

Permission to appeal requires a realistic prospect of success or another compelling reason for the appeal to be heard. A litigant cannot avoid that test by reopening earlier events which do not engage the order under challenge.

An extended civil restraint order requires persistence in issuing or making totally without merit claims or applications. Three such applications are the bare minimum, but satisfying that threshold does not make an order automatic. The court must assess the future threat level and may tailor the order so that applications remain possible with the nominated judge’s consent, while preserving the litigant’s ability to defend applications.

The claimant had brought proceedings alleging unfair prejudice, later bankruptcy-related proceedings, fraud proceedings against numerous individuals, and applications challenging earlier orders. Master Kaye struck out the fraud proceedings for non-compliance with an unless order and lack of standing, dismissed three applications as totally without merit, and made a limited civil restraint order.

Miles J refused permission to appeal and certified the application as totally without merit. The claimant sought a rehearing of that permission application and opposed the trustees’ application for an extended civil restraint order. The issues were whether the proposed appeal had realistic prospects or another compelling reason, whether the threshold for an extended order was met, and how the order should be framed.

1. Permission to appeal. The application was treated as a rehearing of the application considered by Miles J, not as an appeal from his order. The applicable test was whether the proposed first appeal had realistic prospects of success or whether there was some other compelling reason for it to be heard.
2. The proposed grounds did not challenge either of the two reasons for striking out the fraud proceedings. The claimant did not argue that he had complied with the unless order, or challenge the conclusion that any cause of action vested in the trustees. His attempt to revisit the alleged fraud underlying earlier proceedings therefore failed to engage with the order under appeal. The arguments concerning articles 5 and 6 of the company’s articles did not establish bias or judicial fraud, and the judge hearing the earlier application was entitled to focus on the issues necessary for decision.
3. Permission to appeal was refused. The application was certified as totally without merit. The claimant’s other applications, including requests to rescind earlier orders and for criminal or arrest-related orders, were also refused.
4. Extended civil restraint order. Under CPR 3.11 and Practice Direction 3C, the threshold was met. The claimant had made more than three totally without merit applications. The minimum threshold identified in Re: Ludlum (A Bankrupt) was only a starting point; persistence remained necessary.
5. A determination that a claim or application is totally without merit is conclusive unless reversed on appeal. The court may also consider earlier claims or applications which it concludes were totally without merit, although that additional power was not material here, applying Sartipy. The purpose of an extended order is preventive rather than punitive. The principal discretionary consideration is the threat level that further wholly unmeritorious claims or applications will be pursued, applying Ridley.
6. The threat level was high because the claimant intended to continue a campaign involving wide-ranging and unsubstantiated allegations against those involved in earlier litigation. An extended civil restraint order was therefore required. Its precise form was left for further submissions, but it would not prevent the claimant defending applications made by the trustees and would permit applications with the nominated judge’s consent.
7. There was no right of appeal against the refusal of permission to appeal against Master Kaye’s order under Access to Justice Act 1999, s54(4). Permission to appeal against the extended order and the refusal of the other applications was also refused.

• High Court (Chancery Division): Master Kaye struck out the fraud proceedings, made a limited civil restraint order and dismissed three applications as totally without merit. Miles J refused permission to appeal and certified the application as totally without merit. The present court reheard the permission application, refused permission, and made an extended civil restraint order.