COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Justice Moses
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE DYSON
LORD JUSTICE LLOYD
| THE QUEEN on the Application of
|- and -
|SECRETARY OF STATE FOR CONSTITUTIONAL AFFAIRS
Adam Tolley (instructed by the Treasury Solicitor) for the Respondents
Hearing date : 19th June, 2006
Crown Copyright ©
|1. The Background Facts||1|
|2. Action 1||7|
|3. Action 2||20|
|4. Action 3||24|
|5. Action 4||28|
|6. Action 5||31|
|7. Action 6||33|
|8. Action 7||42|
|9. The application for permission to appeal||46|
|10. The appeal against the general civil restraint order||48|
|11. Did the CPR confer a power to make a general CRO in this case?||49|
|12. Did the inherent jurisdiction of the court confer such a power?||51|
|13. Was it open to Moses J to make an extended CRO on 8th November 2004?||64|
|14. Should this court make an extended CRO?||76|
|15. Some Concluding Remarks||78|
Lord Justice Brooke : This is the judgment of the court.
1. The Background Facts
2. Action 1
"Your Claim was issued on 20 May 2003. The court sent it to the defendant by first class post on 23 May 2003 and it will be deemed served on 29 May 2003. The defendant had until 12 June 2003 to reply."
"I have faxed the appeal to Dusseldorf today and explained all the circumstances. Mr Kumar has now got himself into Staffordshire University and is studying law. His leave to enter as a visitor expired on 13/5/03. I have spoken to […] about the case and the possibility of verbal deception the second time Mr Kumar entered the UK in March 2003 while his visitor's leave was running. […] tells me that it is likely that Mr Kumar would be treated as an overstayer and if picked up, the likelihood is he would Judicial Review us or claim Asylum/ Human rights and get bail. There are … no resources to pick up Mr Kumar …"
3. Action 2
4. Action 3
4. Action 4
"I found the circumstances of this case extraordinary. The claimant's asylum claim is manifestly ill-founded since he is complaining about his treatment here, not in India, and I am more than surprised that the defendant has not appreciated this long ago and summarily rejected the claim. That apart, the account the claimant gives of the manner in which he managed to live for some ten months is wholly unsatisfactory: he could hardly have lasted that long on 1,000 Euros. He has not in the circumstances persuaded me that in reality he has no access to funds and I see no reason why he should be supported from the public funds."
It appears that Collins J regarded Action 4 as being totally without merit, although he did not say so in terms.
6. Action 5
7. Action 6
"Upon reading a letter from the Treasury Solicitor
IT IS CONFIRMED THAT the hearing on 5th November 2004 be vacated."
"Also the hearing on 19th November 2004 is to be heard by a District Judge, as it is the application only to be heard. We did refer this matter to the Circuit Judge for confirmation that it was listed correctly."
8. Action 7
"10. Recitation of these cases, does, in my judgment, demonstrate that this applicant persists in vexatious behaviour. The question is whether that behaviour subjects defendants such as the defendant in this case and others to inconvenience, harassment and expense, out of all proportion to any gain likely to accrue to him. The claims which I have identified show that this applicant brings actions or claims at the drop of a hat without any merit whatever. He has no prospect in the claims so far of gaining any benefit out of them and it is plain to me that they are designed no more than to cause harassment, inconvenience and expense to anyone against which they are targeted.
11. I have considered whether it would be sufficient to make an extended CRO, but in my view that is wholly unrealistic. It is plain that the applicant is prepared to use a scattergun approach and fire off claims of any nature whatever against any defendant that he sees within his sights.
12. In those circumstances I am quite satisfied that it is necessary to make a general CRO. I shall make such an order prohibiting Mr Kumar, for a period not exceeding two years, from instituting any proceedings or applications in the High Court or in any county court without permission of either myself or Collins J."
9. The application for permission to appeal
10. The appeal against the general civil restraint order
i) Did Moses J have power to grant a general CRO under the Civil Procedure Rules?
ii) If "no", did the inherent jurisdiction of the court give him such a power notwithstanding the existence of a comprehensive CPR regime for making CROs?
iii) If the answer to both questions is "no", would it have been open to him to grant an extended CRO on the evidence before him, and should this court substitute such an order on this appeal pursuant to its powers under CPR 52.10 (1) and (2)(a)?
iv) If the answer to all these questions is "no", should this court grant an extended CRO on the evidence before us?
In answering these questions we have to consider a number of matters of general interest and importance in relation to the exercise of this comparatively new jurisdiction.
11. Did the CPR confer a power to make a general CRO in this case?
"4.1 A general CRO may be made by –
(2) a judge of the High Court,
where, despite the existence of an extended civil restraint order, the party against whom the order is made persists in issuing claims or making applications which are totally without merit."
12. Did the inherent jurisdiction of the court confer such a power?
"If all these steps prove to be of no avail, then resort has to be made to the more severe restraints embodied in a section 42 order."
"39...A CRO is likely to be appropriate when the litigant's conduct has the hallmark of one who is content to indulge in a course of conduct which evidences an obsessive resort to litigation and a disregard of the need to have reasonable grounds for making an application to the court. Normally we would not expect a CRO to be made until after the litigant has made a number of applications in a single set of proceedings all of which have been dismissed because they were totally devoid of merit."
This jurisdiction was codified in section 2 of the new practice direction which now described this type of order as "a limited CRO."
"43. The court's experience now shows that an even wider form of order may be necessary for a particularly rare type of litigant. A CRO and an extended CRO can only restrain the litigant in the context of the litigation he is currently conducting and other litigation to like effect....
44. It is now clear that it may be necessary, because a litigant's vexatious activities are proving to be such a drain on the resources of a court, for a judge to make an order restraining him from commencing any action or making any application in that court without the prior permission of the court...."
"(6) If an extended CRO is found not to provide the necessary curb on a litigant's vexatious conduct, a High Court judge...should consider whether the time has come to make a general CRO against him."
In para 54 the court went on to say that
"[W]e consider that the two-year CROs of the type we have described in this judgment represent the kind of step by step process approved by Strasbourg jurisprudence..."
In other words, it was not at that time envisaging that a general CRO might be made at the very start of the court's restraining process.
"In my judgment, there is no reason to limit the jurisdiction of the High Court in the way we suggested in the judgment in Bhamjee. If a judge of the High Court is satisfied that the nuisance to be enjoined is extreme enough, it would be absurd if he could only make a general restraint order in the High Court, and had to leave it to individual designated civil judges in the county court up and down the country to make similar orders, if they shared his view as to the nature of the nuisance."
"where the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended CRO would not be sufficient or appropriate."
"What matters here, as I see it, is that, Parliament having given to the Rule Committee the specific power to make rules in relation to interim payments, there would have been power in the Rule Committee to make a rule that would, or might, have governed the matter in respect of which [counsel] invites us to assume that we have inherent jurisdiction. The very fact that that power has thus been expressly given to the Rule Committee indicates, to my mind, that, without action by the Rule Committee, this court does not have such a power. The only exercise of that power hitherto by the Rule Committee, so far as we have been told, is the provision to which Sir John Pennycuick has referred, the new provisions of Ord. 29, r. 9, which are confined to cases of personal injury claims and claims in respect of death. It accordingly has no operation here."
13. Was it open to Moses J to make an extended CRO on 8th November 2004?
i) Was the jurisdiction available to a judge of the Administrative Court in November 2004 when dismissing an application for permission to apply for judicial review under CPR Part 54?
ii) In the exercise of this jurisdiction, was (and is) it open to a court to consider of its own motion whether a judge on an earlier occasion must have rejected an application or dismissed an action as being "totally without merit", or was (and is) its consideration limited to those cases in which these words appear on the face of the court's order?
iii) Did the procedure that led up to the making of a CRO on 8th November 2004 comply with the requirements of the Civil Procedure Rules, and/or was it unfair?
"Rules 3.3(7), 3.4(6) and 23.12 provides that where a statement of case or application is struck out or dismissed and is totally without merit the court order must specify that fact..."
He went on to say (at para 39):
"It seems to me that it is important, and indeed necessary, that in deciding whether or not to make such an order the court should follow the correct procedure. These are orders which restrain litigants from doing what otherwise they would be entitled to do and it is important, and has always been regarded as important, in connection with vexatious litigants that the proper procedure is complied with."
"By the time the order comes to be made the litigant for whom the further restraint has been adjudged necessary will have exhibited not only the hallmarks of vexatiousness...but also the hallmarks of persistent vexatiousness...We do not include the word 'habitual' among the necessary criteria for an extended CRO, but there has to be an element of persistence in the irrational refusal to take 'no' for an answer before an order of this type can be made."
i) Action 1 was triggered off by what appears to have been a legitimate grievance about the Home Office's retention of the appeal papers and Mr Kumar's passport without processing the matter in any way at all, and its failure to respond to his letters when he inquired into the position. We do not find it possible to say that Poole J found that the action was totally without merit (see para 19 above). The transcript of Longmore LJ's judgment was not before Moses J, as it was before us, and it was therefore not open to him to form any opinion as to Longmore LJ's view on the merits of the proposed appeal (see also para 19).
ii) We do not know enough about Action 2 to determine whether it was regarded as being totally without merit, whatever our suspicions (see para 22 above).
iii) Action 3 could legitimately be regarded as totally without merit, and it included three applications, to Munby J, to Pitchford J, and to Jacob LJ, which Moses J would have been entitled to identify as having those characteristics (see para 27 above).
iv) Action 4 could have been regarded as having the same characteristics, in the light of the robust language used by Collins J when he dismissed it (see para 30 above).
v) Action 5 does not appear to have the requisite characteristics. Mr Kumar was asserting that he should not be prevented by his impecuniosity from obtaining access to the information about his case that was held on Home Office computers, and although his action was struck out there is no evidence that either it, or the proposed appeal, was being treated as being totally without merit (see para 32 above).
vi) There was sufficient evidence about Action 6, in which Mr Kumar sought to relitigate matters that could have been disposed of by judicial decision in Actions 1 and 2, for Moses J to be entitled to conclude that it was totally without merit (see paras 33 and 34 above).
vii) Moses J was also entitled to treat the application to Munby J, as well as the application to him, as being totally without merit (see para 45 above).
"The Claimant is entitled to have notice of hearing of any application by their opposing party...at least 3 clear days under mandatory procedural Rules 3.3(3)(a)(b), 2.8(4)(b) of the CPR."
14. Should this court make an extended CRO?
15. Some Concluding Remarks