Perseus Ventures Limited v David Foskett & Ors

An order made without a hearing may be challenged by rehearing, but the original decision carries fact-dependent weight. A civil claim does not become a criminal proceeding or matter merely because it alleges fraud, theft or conspiracy; the relevant question is whether the proceedings could lead to criminal charge, conviction or punishment. A totally without merit certification requires an application that is bound to fail or has no rational argument, with distinct reasons after relevant arguments have been considered. Persistent totally without merit applications may justify an extended civil restraint order. Indemnity costs require conduct unreasonable to a high degree or out of the norm, assessed in the round. The applications were dismissed, the restraint order continued and indemnity costs ordered.

Perseus Ventures Limited v David Foskett & Ors applied to vary or set aside an order made by Soole J on 17 December 2025. That order had dismissed applications dated 26 June and 8 October 2025, certified both as totally without merit and imposed an extended civil restraint order.

The applicant also sought to discharge the restraint order and challenged the jurisdiction of Master Brown, whose earlier unless orders had resulted in the claim being struck out. The central issues were the scope of Masters’ jurisdiction over civil proceedings containing criminal allegations, the correctness of the dismissals and certifications, the continuation of the restraint order and the appropriate costs order.

The court dismissed the jurisdiction challenge, dismissed both applications to vary or set aside the Soole order, refused to discharge the extended civil restraint order and ordered indemnity costs.

1. Rehearing. Under CPR 23.8(3), an order made without a hearing is challenged by rehearing. The original decision is not determinative, but carries fact-dependent weight, and departure requires good reason. The court applied the approach in Wintermute Trading Limited v Terraform Labs Pte Limited [2024] EWHC 141 (KB) and R (Kuznetsov) v London Borough of Camden [2019] EWHC 3910 (Admin).
2. Jurisdiction. The court construed Practice Direction 2B by reference to R (Belhaj) v DPP (No 1) [2019] AC 593. Criminal proceedings or matters concern proceedings capable of exposing a person to criminal charge, conviction or punishment. A civil claim remains civil despite allegations of fraud, theft or conspiracy. Master Brown therefore had jurisdiction.
3. June and October applications. The claim had already been struck out for failure to comply with unless orders, with no appeal or application for relief from sanctions. The applications for summary judgment, a preliminary issue and interim payment consequently had no proper foundation. Applying R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091 and R (Wasif) v Secretary of State for the Home Department [2016] 1 WLR 2793 (CA), the court held that the applications were bound to fail and that Soole J had given adequate, distinct reasons for the certifications.
4. ECRO. The repeated totally without merit certifications satisfied the threshold in Practice Direction 3C. The court relied on the approach in Crimson Flower Production Limited & Ors. v Glass Slipper Limited & Ors [2020] EWHC 942 (Ch), treating unchallenged certifications as at least entitled to significant weight. Continued unmeritorious and prohibited conduct provided no basis for discharge.
5. Costs. Under CPR Part 44, costs followed the event. Applying Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hamer Aspden & Johnson (Costs) [2002] EWCA Civ 879, the applicant’s conduct was unreasonable to a high degree and out of the norm. The respondents’ costs were ordered on the indemnity basis, subject to summary assessment if not agreed.

High Court (King’s Bench Division): Soole J’s order of 17 December 2025 dismissed the June and October applications, certified them totally without merit and imposed an extended civil restraint order. The present court reheard the challenges under CPR 23.8(3), dismissed them and maintained the restraint order.