England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		28 November 2013

LORD JUSTICE LEWISON:

1. When granting permission to appeal in this case, I said it might have got into a procedural tangle. And so it has.
2. The facts are these. On 11 December 2012, Swift J sitting in the High Court of Justice Birmingham District Registry made a General Civil Restraint Order, ("a GCRO"), against Mr John Deeds. The order was to last until 10 December 2014. In principle, that order required Mr Deeds to seek the permission of a court before beginning any civil proceedings while it remained in force.
3. However, paragraph 6 of the order stated:

"This order does not prevent him taking one or more of the steps set out below without the prior permission of HHJ Goddard QC or District Judge Hale.

(1) the Court having made this order of its own initiative and without hearing it or giving you a opportunity to make representations, you have the right to apply without obtaining prior permission to have it set aside, varied or stayed. Any such application should be made to the High Court Birmingham Civil Justice Centre and your application will be heard by a High Court judge.

(2) , you have the right to apply without obtaining prior permission for permission to appeal against this order by filing an Appellant's notice in the Court of Appeal Civil Appeals Office, Room E307, Royal Courts of Justice, Strand, London, WC2A 2LL. You should not take this step unless or until you have made application under paragraph 6(1) of this order."

4. Mr Deeds made the application envisaged by paragraph 6(1) of Swift J's order. We do not know when and we do not have a copy of his application or any of the supporting material, if there was any, which he submitted with it. The application was considered by Males J apparently sitting in the Birmingham County Court rather than the Birmingham District Registry of the High Court on 15 February 2013. Males J considered the application on the papers and refused it. His amended order, issued for some reason by the Nottingham County Court, said:

"Having considered the application to set aside the General Civil Restraint Order made by Swift J which is made pursuant to the permission in paragraph 6(1) of the order and in accordance with CPR Practice Direction 3C paragraph 4.6, such an application will be determined without a hearing. The order of Swift J was fully justified for the reasons given in the recitals."

5. On 18 February, Mr Deeds applied to set aside the order of Males J. His main ground of complaint was that he had been denied an oral hearing or at least a chance to explain why the GCRO should not have been made in the first place. That application came before Morgan J sitting in the Birmingham District Registry. He also considered the application on the papers despite the fact that in his application notice, Mr Deeds had asked for an oral mattering.
6. Morgan J refused to set aside the order made by Males J. His reasons were stated as follows:

"Males J determined the applications which were before him on the papers and without a hearing pursuant to paragraph 4.6 of Practice Direction 3C. It is not open to another High Court Judge to act contrary to paragraph 4.6 of Practice Direction 3C, nor to reverse the decision of Males J to deal about the applications without a hearing."

7. The upshot then is that Mr Deeds has not had the opportunity to explain orally why the GCRO should not have been made against him.
8. Part 52.11 of the CPR provides as follows, as far as relevant:

"The appeal court will allow an appeal where the decision of the lower court was -

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

9. We do not, I think, have the material to say whether the decision of Males J was wrong, so the question is whether there was a serious procedural irregularity which made his decision unjust.
10. Mr Rory Brown appearing pro bono for Mr Deeds has argued there is a high level of principle. His argument, buttressed by a good deal of Latin, is that Mr Deeds had the right to a fair hearing both at common law and by virtue of Article 6 of the European Convention on Human Rights. I am bound to say when I read his skeleton argument, I had a strong impression that by "hearing" he meant orally hearing, but he disclaimed such a proposition before us this afternoon. He accepts that in an appropriate case, a hearing need not take the form of an oral hearing, but he says on the particular facts of our case, M Deeds should have had an oral hearing and moreover, had a legitimate expectation of such a hearing.
11. He contrasts that part of Swift J's order which says "it was made without hearing or giving you an opportunity to make representations" and that part which says "that if he applies to have it set aside, your application will be heard". The latter part of the order, he submits, contemplates an oral hearing, not merely a right to make representations. In my judgment, there is force in that point.
12. Mr Marcus Harry, appearing for some of the Respondents, accepts that there was a procedural irregularity, but says that it has caused no injustice. He has referred us to cases including the R (Ewing) v Department of Constitutional Affairs [2006] EWCA 504 (Admin) in which the Court has held that an oral hearing is not required in every case. As I have said, that proposition is not now disputed by Mr Brown.
13. In our case, the order made by Swift J was an order made on the Court's own initiative. It was, therefore, an order to which CPR Part 3.3 applies. That is the natural meaning of the Rule. It is also the view taken by decisions of this Court in R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990 [2007] 1 WLR 5511 at [74] and by this Court in Connah v Plymouth Hospitals NHS Trust [2006] EWCA Civ 1616.
14. CPR 3.3 reads:

"(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

(5) Where the court has made an order under paragraph (4) -

(a) a party affected by the order may apply to have it set aside, varied or stayed; and.

(b) the order must contain a statement of the right to make such an application."

15. Thus, Mr Deeds had the right conferred by CPR 3.3(5)(a) to apply to have it set aside or varied. The terms of Swift J's order reflected that entitlement. Whether that rule entitles a party against whom such an order is made to an oral hearing will, of course, depend on the nature of the order in question, but in a case in which a citizen's right of access to the Court is at stake, the presumption must be in the favour of an oral hearing.
16. Both Males J and Morgan J referred to paragraph 4 of Practice Direction 3C. The relevant parts of paragraph 4 are as follows:

"4.2, Unless the court otherwise orders, where the court makes a general civil restraint order, the party against whom the order is made -

(1) will be restrained from issuing any claim or making any application in –

(a) any court if the order has been made by a judge of the Court of Appeal;

(b) the High Court or any county court if the order has been made by a judge of the High Court; or.

(c) any county court identified in the order if the order has been made by a designated civil judge or his appointed deputy without first obtaining the permission of a judge identified in the order;

(2) may apply for amendment or discharge of the order provided he has first obtained the permission of a judge identified in the order; and.

(3) may apply for permission to appeal the order and if permission is granted, may appeal the order."

Paragraph 4.6 provides:

"An application for permission under paragraphs 4.2(1) or 4.2(2) –

(1) must be made in writing;

(2) must include the other party's written response, if any, to the notice served under paragraph 4.4; and

(3) will be determined without a hearing."

17. Since CPR Part 3.3(5)(a) gives a litigant the right to apply to set aside an order made on the Court's own initiative, it is very doubtful whether the exercise of that right falls within paragraph 4.2 of Practice Direction 3C at all; but if it does, paragraph 4.2 says that it applies unless the Court otherwise orders. In our case, the Court did otherwise order because the order of Swift J gave Mr Deeds the right to apply to have the order set aside without first obtaining permission to do so.
18. Paragraph 4.6 of the Practice Direction applies to an application for permission to apply to amend or discharge a GCRO once a GCRO has been validly made. It does not on its face apply to the application to amend or discharge the order itself once permission has been granted. Thus, in my judgment, both Males J and Morgan J were wrong to have thought that Mr Deeds' application fell within the terms of paragraph 4.6 of the Practice Direction. The rules did not, therefore, require Males J to consider the application on the paper.
19. Following a suggestion that I made in giving permission to appeal, Mr Harry argued in his written submissions that Males J could have exercised his power under CPR 23.8(c) to deal with the application on the papers and would have done so if he had appreciated that paragraph 4.6 of Practice Direction 3C did not apply.
20. CPR Part 23.8 provides:

"The court may deal with an application without a hearing if -

(a) the parties agree as to the terms of the order sought;

(b) the parties agree that the court should dispose of the application without a hearing, or

(c) the court does not consider that a hearing would be appropriate."

That rule is supplemented by Practice Direction 23A, paragraph 11.2 of which says:

"Where rule 23.8(c) applies the court will treat the application as if it were proposing to make an order on its own initiative."

21. Thus, if the Court had exercised the power given by CPR 23.8(c) then, as stated by paragraph 11.2 of the Practice Direction, CPR Part 3.3 would have applied once again. It thus follows from that Practice Direction that if Males J had exercised the power under CPR Part 23.8(c) to deal with the application on the papers, his order would also have been capable of being set aside by another judge on a subsequent application made by Mr Deeds. Morgan J said that Males J was authorised to deal with the application on the papers, but that could only have been the case if Males J had, in fact, exercised his power under CPR Part 23.8(c). If he had done so, his order should have recorded Mr Deeds' right to apply to have it set aside. Thus, Morgan J could not have been misled into saying that he had no power to set Males J's order aside.
22. In short, the wheel turns full circle and we are back to CPR Part 3.3(5). So on reflection, I do not think that the possibility of treating the application as one that had been decided under CPR Part 23.8(c) carries the matter any further.
23. In addition, as Mr Brown has submitted, Swift J's order had said that if Mr Deeds applied for a discharge of the GCRO, his application would be "heard". Given the seriousness of the order made against Mr Deeds on the Court's own initiative and the terms of CPR 3.3(5)(a), I do not think, in those circumstances, it was open to Males J to decide not to hear the application orally.
24. I do not question the correctness of the decision of Sullivan J in Ewing, but the context is important. The Applicants in that case had already been declared what used to be called vexatious litigants. A declaration to that effect would only have been made after an oral hearing.
25. By contrast in our case, although a GCRO had been made against Mr Deeds, he has not been given an opportunity to present oral argument to challenge the making of that order. If the GCRO is upheld, it will place a significant hurdle in the path of Mr Deeds' access to the Courts. In my judgment, fairness demands that Mr Deeds be given an opportunity to explain to a judge why he contends that the order should not have been made.
26. I might also add that in Kumar at paragraph 74, this Court treated the power to make a Civil Restraint Order on the Court's own initiative without giving notice to the person against whom it was to be made as an exceptional power and, perhaps more importantly, that it would be made as an urgent interim measure only. That point was also picked up by this Court in Connah.
27. It is, in my judgment, plainly contemplated by the Rules that at some stage a person against whom such an order is sought will have a chance to present his defence orally, either in response to an application of such an order or on his own application to set aside an order made without notice on the Court's own initiative.
28. I would, therefore, allow the appeal and direct that Mr Deeds' application to set aside a GCRO should be considered at an oral hearing before a High Court Judge. I add that the oral hearing need not be a long one. Mr Deeds would do well to ensure that he presents in a timely fashion any written material that he wishes the judge to read.

MR JUSTICE COLERIDGE: I agree.

LORD JUSTICE RICHARDS: I also entirely agree with the judgment of Lewison LJ. The appeal is allowed and Males J's order is set aside.