Civil restraint orders: enough is enough

The combined judgments in Lilley v Euromoney Institutional Investor plc and another, Lilley v The Chartered Institute of Management Accountants, and Lilley v Aspermont UK Ltd [2014] EWHC 2364 (Ch) provide useful judicial commentary on the criteria and relevant authorities to be applied to obtain a civil restraint order (CRO).

A CRO may be needed where a party repeatedly makes wholly unmeritorious applications
and costs orders are an ineffective sanction.

The rules are set out in
CPR 3.11 and practice direction 3C and provide three types of CRO – limited, extended and general. The effect of any CRO is to require the recipient to obtain the permission of the judge named in the order before any further application or claim to which the CRO relates can
be issued.

Limited CROs apply solely to the proceedings in which the order is made; extended CROs relate to claims or applications ‘relating to or touching upon or leading to the proceedings in which the order is made’ in the courts identified by the judge making the order; and general CROs relate to any claim or application in the named courts.

Without merit applications

To grant a limited CRO, the
judge must be satisfied that the
litigant has made two or more applications which are ‘totally without merit’. For extended CROs, the requirement is that
a litigant has persistently issued claims or made applications without merit and for general there is an additional requirement that an extended CRO wouldn’t be sufficient or appropriate.

In the Lilley cases copyright infringement was alleged against various trade publications, which was incorrectly valued at hundreds of millions of pounds. The claimant had made repeated applications to set aside earlier orders against him; to recuse Justice Birss; and to adjourn or split hearings which had been scheduled together.

Birss J commented on practice direction 2.1, dealing with limited CROs, in which it was unclear whether the two meritless applications need to be in the same proceedings. He held that both court form N19 for a limited CRO and Bhamjee v Forsdick [2004] 1 WLR 88 clearly envisaged that the applications would be in the same proceedings as the CRO. He did not have to decide the point, but gave his own view that the applications would need to be in the same proceedings.

Element of persistence

In considering whether
to make an extended CRO
against Lilley, Birss J referred to the commentary in Courtman v Ludlam [2009] EWHC 2067 Ch that the litigant must demonstrate ‘an element of persistence in the irrational refusal to take “no” for an answer’. This would require a minimum of three unmeritorious applications. Birss J agreed that more than two applications would be needed, but said that the court could
also take account of other proceedings in which applications without merit
had been made.

In these cases the judge took account of earlier unmeritorious applications in the claims which hadn’t been characterised as totally without merit, together with applications in unrelated proceedings which had been so categorised. He also considered threats of further claims that the claimant was making against officers of one defendant. He therefore made an extended
CRO for the maximum period of two years.

Practitioners who are
faced with a persistent litigant
making bad applications should investigate any previous litigation as well as inviting judges in their own case to rule that such applications are labelled as without merit. SJ

Patrick Wheeler, pictured, is the treasurer of the London Solicitors Litigation Association and partner and head of dispute resolution at Collyer Bristow.  Maria Coker is an associate solicitor at Collyer Bristow