England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Rolls Building, Royal Courts of Justice 7 Rolls Buildings, Fetter Lane London, EC4A 1NL
		11/02/2015

Mr Justice Newey :

1. I have before me an application by the defendants to a claim brought by a Mr Joseph Garnham for the proceedings to be struck out and for a civil restraint order ("CRO") to be made against Mr Garnham. The defendants comprise Downs Solicitors LLP ("Downs") (the fifth defendants); one of the firm's partners, Mr Christopher Millar (the first defendant); Mrs Jane Whiting (the second defendant); a predecessor firm, Downs Solicitors, which ceased trading in 2006 (the third defendants); and the executors of the estate of a Mrs Iris Bristow, who are Mr Millar, Mrs Whiting and a Mr Timothy Hughes, another solicitor with Downs (the fourth defendants). The claims against Mr Millar and Mrs Whiting as the first and second defendants are expressly stated to be made against them personally.

The background

2. The events with which I am concerned can be traced back to a probate claim that was brought following the death of a Mr Arthur Wilkins. The parties to those proceedings included Mr Garnham and Mrs Bristow, who was Mr Wilkins' sister. The dispute was compromised by a consent order dated 28 October 2003. This order ("the 2003 Order") imposed significant obligations on Mrs Bristow.
3. In 2009, Mrs Bristow issued proceedings ("the 2009 Proceedings") against Mr Garnham and his wife. The relief sought related in part to false representations that Mr Garnham was alleged to have made to Mrs Bristow shortly before the 2003 Order was made. The particulars of claim asserted that the representations in question were made on 27 October 2003 when Mr Garnham and a Mr Skeels "visited [Mrs Bristow] in hospital and discussed with her the progress of the trial". In his defence and counterclaim, Mr Garnham said that he had tried to visit Mrs Bristow on 27 October, but had not been able to speak to her either then or at any other point in the trial. In her reply and defence to counterclaim, Mrs Bristow maintained that Mr Garnham had seen her on both 26 and 27 October and that the alleged representations had been made on one or other day.
4. Late in 2009, the 2009 Proceedings were listed to come on for trial in a five-day window from 14 June 2010. In the event, a settlement was agreed at a mediation on 14 May 2010, and the terms were reflected in a Tomlin order sealed on 7 June. Mr Garnham had first indicated a willingness to mediate at the beginning of May.
5. In advance of the mediation, a position statement was prepared on Mrs Bristow's behalf. This gave as one element of Mrs Bristow's claim, "Damages for Mr Garnham's misrepresentations (which he is now aware were tape recorded)". On 11 May 2010, having seen the position statement, Mr Garnham's counsel sent Mrs Bristow's counsel an email in which he said:

"I have asked Palmers [i.e. Mr Garnham's solicitors] to look at your list of documents to see whether there is a reference to a tape recording of the (asserted) meeting between Mrs B and Mr G at (I assume) the hospital making the asserted misrepresentations. Do you intend to bring the tape to the mediation?"

Mrs Bristow's counsel replied:

"Tape recorded conversation – I am sure the recording can be made available. It is quite difficult to follow as it is both a poor recording and, in some instances, there are two conversations going on at the same time. It has however been transcribed by an expert. Do let me know if you would like a copy of the recording."

In response, Mr Garnham's counsel said:

"I would certainly like to see the transcript of the tape. The tape ought to have been disclosed (Palmers tell me it was not in Mrs B's list and had not been disclosed since). Could you please arrange for them to be sent a copy of the tape and, if my instructions are correct, an explanation for its non-disclosure to date."

That led Mrs Bristow's counsel to say:

"I have referred the transcript issue to my sols – they will provide a copy to Palmers. If the transcript and tape are not in the list of documents then it must simply be that they were overlooked."

In a subsequent email, however, Mrs Bristow's counsel said:

"I have taken instructions on the tape recording at the hospital – it was disclosed as item 49 in C's list. I have it in computer form. Do let me know if you would like me to email the file."

6. On 13 May 2010, Palmers referred to the subject in a letter to Downs. They said:

"we would point out that item 49 of your list of documents refers to 'copy attendance note DWC' and not a recording from a forensic audio company. Please explain this discrepancy or direct us to the correct item in your client's list of documents."

7. The likelihood is, it seems, that the list of documents that Downs had served on Mrs Bristow's behalf a few months earlier had not in fact referred to any recording of a conversation between Mrs Bristow and Mr Garnham. According to Mr Millar, the list was subject to revision until 7 December 2009 and, in its final form, had as item 49, "Recording of conversation at St Mary's Hospital Paddington". In contrast, the immediate predecessor, dated 3 December 2009, made no reference to either that recording or more than a dozen other items that featured in the rival version. Mr Millar has said in a witness statement:

"Whether, when the document was sent by fax to Palmers and printed for sending by DX, the wrong file was accessed, I do not know. I suppose it is possible that either I or my secretary … may have made a mistake which (in the latter instance) I failed to pick up.

In any event if that is what happened, it would have been an inadvertent mistake which only came to light during preparation for the Mediation."

For present purposes only, Mr Ian Clarke, who appeared for the defendants, has conceded that it is probable that the existence of the recording was not in fact disclosed until shortly before the mediation.

8. It is evident that, when the mediation took place, Mr Garnham was far from ready for trial. In the judgment of Proudman J to which I shall refer in a moment, she said (at paragraph 39):

"Mr Garnham was under severe pressure by this stage. His solicitors had said he would apply for an adjournment of the trial, but he had not done so. He was not ready for trial. He apparently had witness statements from his witnesses but was reluctant to exchange them. He was therefore at severe risk that he would not be permitted to rely on them, which was crucial to his counterclaim. He had not instructed an accountancy expert. There were credibility issues about whether he had in fact spoken to [Mrs Bristow] in hospital."

Proudman J's remarks are borne out by a witness statement that a solicitor with Palmers made on 4 May 2010. The solicitor stated in that witness statement that he had omitted to enter the trial date in the diary and further explained:

"I am advised and believe that the Defendants are not, and are not likely to be, ready for a trial on 14^th June 2010. [Mr Garnham] … has told me that he believes that it will take him another month to complete his witness statement [and those of the other 13 witnesses he wishes to call]. He has told me that his own witness statement was likely to run over 130 pages, that he has instructed an accountant to give evidence on his behalf – and that the accountant has indicated that his report is not likely to be ready before September 2010."

9. Within a matter of weeks after the mediation, Mr Garnham was expressing dissatisfaction with the settlement to which he had agreed. On 7 June 2010, Mr Garnham raised with Master Moncaster the possibility of challenging the settlement and was told that, as a matter of procedure, a fresh action would be required if the Tomlin order were to be set aside.
10. On 22 June 2011, Mrs Bristow died, aged 97. In the September, notwithstanding the comments that Master Moncaster had made the previous year, Mr Garnham issued an application within the 2009 Proceedings for the setting aside of the Tomlin order. The application was dismissed by Morgan J on 24 November 2011.
11. In January 2012, Mr Garnham issued new proceedings ("the 2012 Proceedings"). The defendants were described in this way in the heading to the particulars of claim:

"Defendant:

Mrs Iris Edith Garland Bristow (Deceased)

Represented by The Executors of her Estate:

1. Christopher Ian Millar

2. [Jane] Marie Whiting

3. John [Bruen] Hughes".

Mr Garnham asserted in the particulars of claim that the 2009 Proceedings were advanced and promoted by Mrs Bristow and "her Accomplice, [Jane] Marie Whiting", by deliberate misconduct. Allegations of conspiracy to defraud, perjury, perverting the course of justice, duress, deceit, breach of the Civil Procedure Rules, breach of the Solicitors Regulation Authority ("SRA") Code of Conduct and breach of the Data Protection Act 1998 were put forward. The recording featured prominently in Mr Garnham's complaints. Thus, he said for example:

"The non disclosed Tape/Tapes produced in the form of a CD and a 40 page transcript at the mediation meeting on the 14/5/2010, and used as a weapon in an ambush, I never knew existed prior to the mediation meeting."

Elsewhere in the particulars of claim, Mr Garnham said:

"There is Overwhelming and Proven Evidence of Lying, Misrepresentation, and Dishonesty by the Defendant, [Jane] Marie Whiting, and/or Chris Millar, and/or Hugh Jackson, in the Statements made in the Particulars of Claim for the [2009 Proceedings]."

Mr Garnham claimed to be entitled to monetary relief in the sum of £1,378,731.07 and, by an amendment, the setting aside of the settlement agreed at the 2010 mediation.

12. In May 2012, the defendants applied for the 2012 Proceedings to be struck out or, alternatively, for summary judgment in their favour. The application came before Proudman J, who, on 8 October 2012, gave judgment for the defendants and ordered Mr Garnham to pay their costs on the indemnity basis. At paragraph 104 of her judgment, Proudman J concluded:

"It is time that this misplaced action was disposed of. The defendants have satisfied me that there is no fair or reasonable probability of Mr Garnham having a real or bona fide claim. I give him the benefit of the doubt and say that I think he now explicitly believes the allegations he is making, but they are nonetheless scurrilous and unfounded."

Earlier in her judgment, Proudman J had said:

"80. While I repeat that it is not for me to make findings on an application where there is a genuine dispute of fact, I am permitted to take a common sense view of the credibility of Mr Garnham's case. When the absence of any credible evidence as to the fact of forgery of the recording, and the absence of any suggestion whatsoever as to how such a sophisticated forgery could have been effected, are considered in conjunction with the gravity of the allegation against those who are said to be responsible, the prospects of establishing that [Mrs Bristow], any of the defendants or counsel were 'in on it' is fanciful. There are no surrounding facts which give rise to any credible case by inference. Any reference to having 'a tape' can only be understood (and can only have been understood) as references to the medium on which the recording was available.

81. It is also very important to my mind that if Mr Garnham had objected to the recording at the time he would still have been advised to agree, and would have agreed, the Tomlin. There was no realistic chance that he would succeed at trial so that exclusion of the recording would not have sufficed. Indeed, … one does not have to read very far between the lines of his counsel's email exchange with [Mrs Bristow's] counsel before the recording came to light to realise that, correctly, a pessimistic view was being taken of Mr Garnham's chances of success."

At paragraph 70 of her judgment, Proudman J had said:

"[T]he idea that the recording would be withheld from the defendants' disclosure list (with the possible consequences as to its admissibility (because of CPR 31.21) and indeed on the matter proceeding to trial in the window allocated) in order for it to be deployed in the alleged ambush is far fetched. Given that the mediation was arranged at the last minute (Mr Garnham having dropped his earlier reluctance to mediate) and on about 10 days' notice a month before trial, the idea of this important piece of evidence being held back so late in case some event would occur so that it could be used against Mr Garnham, is fanciful."

13. Mr Garnham applied for permission to appeal against Proudman J's order, but Lewison LJ refused permission on paper on 23 July 2013. On 22 July 2014, Mr Garnham renewed his application at an oral hearing before Vos LJ. Vos LJ explained in his judgment (at paragraphs 30-32) that Mr Garnham had produced a lengthy skeleton argument in support of his application in which he had alleged, under the heading "essence of my claim", that there had been:

"non-disclosure, misrepresentation, deceit and dishonesty prior to and at the mediation on 14 May 2010 by the Defendants who conspired not to disclose the recording prior to the mediation knowing that it had been covertly recorded and processed contrary to the Data Protection Act 1998 and that it was not genuine".

14. Like Lewison LJ, Vos LJ declined to grant permission to appeal. The core of his reasoning is to be found in paragraphs 44 and 45 of his judgment, in which he said:

"44. More important than that, it is perfectly clear from all the circumstances of this case that the reason that the 2009 proceedings were compromised was because, on their merits, Mr Garnham was unlikely to win them. He was advised by solicitors and counsel. He chose to settle the proceedings knowing that a recording had been produced and knowing that he had not had an opportunity fully to consider its contents or its genuineness at the time. He was in a position to decide whether or not to settle knowing of those uncertainties. He chose to settle with legal advice.

45. In those circumstances, not because Mr Garnham cannot show that there are uncertainties about the precise date and time of the recording and the precise provenance of it, but because the recording does not seem to me to have been a material factor in Mr Garnham's decision to settle, there is no possibility of a successful appeal from Proudman J's judgment."

Vos LJ went on to observe (at paragraph 47):

"In litigation it is crucial that there is finality to all disputes …. Mr Garnham is, I am afraid to say, conducting a crusade in an attempt to rewrite history and to extricate himself from a settlement agreement that transparently represented the merits of the 2009 litigation and that he freely entered into with the benefit of legal advice."

15. The present proceedings were issued on 27 March 2014. The claim form gives the amount claimed as £1,378,731.10.
16. Vos LJ referred to the present proceedings in his judgment (at paragraph 49):

"I should point out in this judgment that I am disappointed to see that Mr Garnham has seen fit to issue new proceedings against the same parties in respect of very similar relief as has been sought in those proceedings …. Mr Garnham should be aware that if he were to pursue the same proceedings under a new claim form against these Defendants having been denied permission to appeal from Proudman J's judgment, it is more than likely that he will be the subject of an application for a Civil Restraint Order in the usual terms."

17. Mr Garnham's claim in the present proceedings was summarised in his skeleton argument for the hearing before me in much the same way as his claim in the 2012 Proceedings was described in his skeleton argument for the hearing before Vos LJ (see paragraph 13 above). Mr Garnham explained that the "Essence of [his] Claim" is that in the 2009 and 2012 Proceedings:

"there had been false non disclosure, fraudulent misrepresentation, deceit, and dishonesty in relation to [Mrs Bristow's solicitor's] consultation notes and Mrs Bristow's medical records and the Tape, its originality, authenticity and genuineness, and the accuracy of the Transcripts prior to, and/or at mediation in the [2009 Proceedings] and thereafter in the [2012 Proceedings], as described in the Particulars of Claim for the [present] proceedings and contravention of statute, for which I now pursue a claim for damages."

18. The particulars of claim focus particularly on the recording and its late disclosure. Allegations are made of, among other things, dishonesty, deceit and breach of the Regulation of Investigatory Powers Act 2000, the Data Protection Act 1998, the Civil Procedure Rules and the SRA Code of Conduct. The recording is said to have been made, received, listened to and edited unlawfully. Complaint is also made of the failure to disclose the recording, which, it is suggested, was designed to "[c]onceal the true status of (the recording) its origin, source and/or attributes". The recording and an incomplete transcript were, it is said, "used in an ambush and as a threat at the mediation meeting, to influence the proceedings to unsettle [Mr Garnham], create confusion and/or doubt in [his] mind, to induce an unfair and/or unjust settlement from [him] for financial gain". Mr Garnham further alleges that "false statements and/or misrepresentations" were made in the particulars of claim in the 2009 Proceedings, in particular as to the "awareness, capacity, personality" of Mrs Bristow and "personal information" about her. On top of that, the defendants are said to have improperly covered up and concealed their earlier misconduct. Mr Garnham concludes:

"From all of the aforementioned unscrupulous and/or dishonest conduct, I have suffered financial loss and emotional distress in my business and my private life over a period of 5 years; I therefore claim damages for the same."

19. During his oral submissions, Mr Garnham concentrated very much on the recording and its non-disclosure. He argued that the failure to disclose the recording was deliberate, not the result of an honest mistake. He also referred me to various features of the recording and the transcript of it. He alleged, moreover, that Mr Millar and Mrs Whiting had set out to deceive the Court and that the list of documents that included "Recording of conversation at St Mary's Hospital Paddington" as item 49 had been created to defeat the application heard (and dismissed) by Morgan J in October 2011. On the other hand, Mr Garnham accepted that his voice could be heard on the recording and that the conversation between him and Mrs Bristow that is said to have been recorded in fact took place. He was also inclined to attribute his decision to settle the 2009 Proceedings to failings on the part of his lawyers rather than to the recording, which he did not seem to consider particularly damaging of itself.

The strike out application

20. The defendants' application to strike out the proceedings is made pursuant to CPR 3.4. CPR 3.4(2) empowers the Court to strike out a statement of case if it appears to the Court:

"(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or court order."

The defendants rely on (a) and (b).

21. The authorities to which I was referred on this part of the case included Johnson v Gore Wood & Co [2002] AC 1, Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321, [2004] Ch 1 and Aldi Stores Ltd v WSP Group plc [2007] EWCA Civ 1260, [2008] 1 WLR 748. In Johnson v Gore Wood & Co, Lord Bingham said this (at 31) about the circumstances in which it will be an abuse for a party to bring a claim which could have been advanced in earlier proceedings:

"The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before…. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, it if is, to ask whether the abuse is excused or justified by special circumstances."

22. In Aldi Stores Ltd v WSP Group plc, the claimant contended that there could be no question of its claim being struck out because there was no sufficient degree of identity between the defendants to a previous action and those to the proceedings that were before the Court. Thomas LJ, with whom Longmore and Wall LJJ expressed agreement, did not accept the argument. He said (in paragraph 10):

"Lord Bingham made clear in his speech [in Johnson v Gore Wood & Co] that the approach should be a 'broad merits-based judgment' and not formulaic. It is clear he was approving the passage in the judgment of Megarry V-C as the 'correct approach' and not as a statement of rigid application. The fact that the defendants to the original action and to this action are different is a powerful factor in the application of the broad-merits based judgment; it does not operate as a bar to the application of the principle."

23. The judgment of Megarry V-C mentioned in this passage was that which he gave in Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510. At 515, Megarry V-C said:

"Second, it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase 'privity of interest.'"

24. In Secretary of State for Trade and Industry v Bairstow, the issue was whether it was open to a defendant to directors' disqualification proceedings to challenge facts found by a judge in proceedings that had previously been brought against him by an unconnected claimant. Morritt V-C, after considering Hunter v Chief Constable of the West Midlands Police [1982] AC 529 and a number of other authorities, said (at paragraph 38):

"In my view these cases establish the following propositions. (a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court. (b) If the earlier decision is that of a court exercising a criminal jurisdiction then, because of the terms of sections 11 to 13 of the Civil Evidence Act 1968, the conviction will be conclusive in the case of later defamation proceedings but will constitute prima facie evidence only in the case of other civil proceedings…. (c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute."

25. I can deal shortly with the position of the third and fourth defendants (i.e. the old Downs Solicitors and the executors of Mrs Bristow's estate). In the course of argument, Mr Garnham accepted that his claims against these defendants could not be pursued. I shall therefore strike out the proceedings as against them.
26. According to the other defendants (namely, Mr Millar, Mrs Whiting and Downs), the claim should be struck out as against them as well. Mr Clarke pointed out that the case that Mr Garnham is now advancing corresponds very closely to that already rejected by Proudman J and Vos LJ. In the circumstances, Mr Clarke argued, the proceedings represent an abuse of process even though the defendants are not precisely the same and regardless of whether they can be said to involve any new claims. In any case, Mr Clarke submitted, the proceedings are unfounded and bound to fail.
27. In my view, Mr Clarke is right that these proceedings represent an abuse of the Court's process. On any view, they involve a replay of matters on which Mr Garnham has already lost before Proudman J and Vos LJ. Whether or not the current particulars of claim can be said to incorporate some cause of action that was not advanced in the 2012 Proceedings, the two sets of proceedings cover very much the same ground and are rooted in the same facts. The similarities are evident from, for example, comparison of the two sets of particulars of claim, the amounts claimed in each (£1,378,731.07 or £1,378,731.10 – see paragraphs 11 and 15 above), Mr Garnham's summaries of the "essence" of his claims (see paragraphs 13 and 17 above) and the submissions that he advanced to me and those that he can be inferred to have made to Proudman J and Vos LJ. That the present proceedings involve a collateral attack on the decisions of Proudman J and Vos LJ is brought home by the pages of Mr Garnham's skeleton argument that are devoted to criticisms of Proudman J's judgment. It is true that the defendants to these proceedings are not precisely the same as those to the 2012 Proceedings, but there is an exceptionally high degree of identification between them. Mr Millar and Mrs Whiting were defendants to the 2012 Proceedings as well as those with which I am concerned, albeit perhaps as executors rather than in a personal capacity. Moreover, while Downs were not as such defendants to the 2012 Proceedings, two solicitors from the firm were, and there could presumably be no question of Downs having any liability without those individuals being found to have been at fault.
28. In all the circumstances, it seems to me that the present proceedings involve unjust harassment of the defendants (to use words of Lord Bingham – see paragraph 21 above) and that, to allow Mr Garnham to relitigate the points decided against him by Proudman J and Vos LJ would both be manifestly unfair to the defendants and liable to bring the administration of justice into disrepute (to echo Morritt V-C in Bairstow – see paragraph 24 above).
29. I also consider that, even if allowed to go to trial, the proceedings would be bound to fail. My reasons include these:

i) There is no good reason to suppose that the recording was fabricated. The only significant expert evidence comes from a Mr Paul Groninger, who has prepared two reports. He stated in the first of these that he had "found nothing to suggest that the individual recordings have been edited or tampered with". In his second report, he said that he did "not agree with the suggestion that [Track 2] has been compiled from 3 different sources on different dates". Further, as I have already mentioned (see paragraph 19 above), Mr Garnham accepted during argument that the conversation between him and Mrs Bristow that is said to have been recorded did in fact take place (notwithstanding that that seems hard to reconcile with the case Mr Garnham pleaded in his defence to the 2009 Proceedings – see paragraph 3 above);

ii) There is no good reason to suppose that the fact that the recording was not disclosed to Mr Garnham until May 2010 was anything other than inadvertent. As Proudman J pointed out (see paragraph 12 above), the idea that Mrs Bristow or those representing her would have withheld the recording deliberately in order to ambush Mr Garnham at the mediation is far-fetched. Any such scheme would have involved running the risk that the trial would be adjourned or, still worse, that Mrs Bristow would not be allowed to rely on the recording at all. Mrs Bristow and her advisers would have been the less likely to take such a chance when Mr Garnham had not even indicated a willingness to participate in a mediation until May 2010;

iii) There is no good reason to suppose that the list of documents that incorporated "Recording of conversation at St Mary's Hospital Paddington" was created (as Mr Garnham suggested) to defeat the application that Morgan J heard in October 2011. Rather more than a year earlier, in May 2010, Mrs Bristow's counsel had referred to a list which disclosed the recording as item 49, said that he had it in computer form and offered to email it (see paragraph 5 above);

iv) There is no good reason to suppose that the recording or its late disclosure caused Mr Garnham to enter into the agreement that was embodied in the Tomlin order. As Proudman J noted (see paragraph 8 above), Mr Garnham was nowhere near ready for trial and under severe pressure. Moreover, during the hearing before me Mr Garnham himself tended to explain the settlement by reference to alleged failings on the part of his lawyers rather than the recording (see paragraph 19 above); and

v) There is no good reason to suppose that Mrs Bristow's lawyers would have been willing to take part in the grave misconduct that Mr Garnham alleges.

30. I shall, accordingly, order the claim to be struck out as against all the defendants. I shall further record, in accordance with CPR 3.4(6), that I consider the claim to be totally without merit.

The application for a civil restraint order

31. CPR 3.11 empowers the Court to make a CRO in the circumstances specified in Practice Direction 3C. Paragraph 3.1 of that Practice Direction states that an extended civil restraint order ("ECRO") may be made where a party has "persistently issued claims or made applications which are totally without merit". "Persistence" in this context "must require more than two claims or applications which are totally without merit" (to quote from Birss J in Lilley v Euromoney Institutional Investor plc [2014] EWHC 2364 (Ch), at paragraph 96). When deciding whether a litigant has made applications that were totally without merit, applications that were not so characterised at the time can be relevant: as Birss J noted in the Lilley case (at paragraph 104), "the court is entitled to address earlier applications not characterised as totally without merit, decide that they were in fact totally without merit and then take them into account in considering an Extended CRO".
32. I have already said that I consider the present claim to be totally without merit. No other application made by Mr Garnham has previously been certified to be totally without merit, but Mr Clarke argued that various applications were in fact devoid of any merit.
33. I can, I think, concentrate on some applications that Mr Garnham mounted in the 2012 Proceedings. In the first place, in April 2012 Mr Garnham issued an application for the defence to the proceedings to be struck out on the basis of the defendants' failure to respond to requests for further information. The first such request had been sent to Mr Millar by email late on 20 March and asked for an answer by 31 March. A revised request was emailed to Mr Millar on 21 March, again with 31 March given as the date by which an answer was required. On 22 March, Mr Garnham sent Mr Millar a yet further version of the request, still with the same 31 March date. In the early evening of 29 March, a new request was emailed to Mr Millar, in which the date by which an answer was required was stated to be 7 April. On Thursday 12 April, Mr Millar asked Mr Garnham in an email to clarify the relationship between the different documents and said that, subject to his hearing from Mr Garnham by the following day, he hoped to respond substantively "early next week". Without, it seems, replying to Mr Millar's email, and notwithstanding the extent of the further information he had asked for, Mr Garnham proceeded to apply for the striking out of the defence. The application notice was stamped by the Court on Monday 16 April.
34. There can, in all the circumstances, have been no prospect at all of Mr Garnham obtaining the relief claimed in his application notice. The application was, in my view, totally without merit. In the event, the parties agreed that it should be dismissed by consent.
35. Next, on 27 June 2012 Mr Garnham issued a further interlocutory application, asking for the settlement embodied in the Tomlin order to be set aside and for Mr Millar and Mrs Whiting to be cross-examined. The application came before Proudman J later in the year, at the same time as the defendants' application for the proceedings to be struck out or summary judgment. As regards the application for the settlement to be set aside, Proudman J said this in her judgment of 8 October 2012 (at paragraph 99);

"This head of relief ought to be dismissed. The claim for it is in any event incompatible with Mr Garnham's dispute with the defendants' expert on the facts of the case. It is not for Mr Garnham to say that the matter should not go to trial."

Proudman J also refused to accede to Mr Garnham's cross-examination applications, which, she recorded, were not seriously pursued before her (see paragraph 107 of the judgment).

36. Once again, it seems to me that there can never have been any real prospect of Mr Garnham being granted any of the relief he sought in his application notice. As Mr Clarke said, the application was utterly misconceived. It was also, as I see it, totally without merit.
37. Finally, Mr Garnham launched two applications in July 2012. The first application notice to be issued was dated 7 July but stamped on 10 July. Like the June application, this application notice asked for the 2010 settlement to be set aside and directions allowing Mr Millar and Mrs Whiting to be cross-examined. The application was dismissed by Vos J on 16 July.
38. By then, Mr Garnham had issued another application, again asking for permission to cross-examine Mr Millar and Mrs Whiting. On 17 July, Mr Garnham proposed that, in the light of comments Vos J had made the day before, the application be removed from the list.
39. To my mind, each of the July applications was totally without merit. Neither was any more likely to be successful than the 27 June application which I have already said had no real prospect of success. In fact, the application issued on 10 July rather replicated the 27 June application, and the other July application covered much the same ground as both its immediate predecessor and the 27 June application.
40. All in all, I am satisfied that Mr Garnham has issued at least five claims or applications that were totally without merit and, hence, that he has done so persistently. Further, it seems to me that, looking at matters in the round, Mr Garnham is someone who, as regards the subject matter of the present proceedings, refuses "to take 'no' for an answer" (to adopt words used by the Court of Appeal in Bhamjee v Forsdick [2003] EWCA Civ 1113, [2004] 1 WLR 88, at paragraph 42). It is noteworthy in this context that Mr Garnham chose to continue his pursuit of the present proceedings despite Vos LJ saying that he was disappointed that Mr Garnham had seen fit to issue them (see paragraph 16 above). In all the circumstances, I consider it appropriate to make an ECRO for a two-year period.
41. Such an order is, I think, in Mr Garnham's interests as well as those of the defendants. My impression, having heard submissions from Mr Garnham, is that he genuinely believes that he is justified in pursuing his complaints. The reality, however, is very different. An ECRO will prevent him from wasting yet more time and money on hopeless litigation.
42. I shall, accordingly, make an ECRO along the lines of the draft submitted to me by Mr Clarke. As, however, Mr Clarke suggested, the order will not extend to the proceedings that have evidently been brought against Mr Garnham by Palmers in Basildon County Court (case number 1UC00854), about which I know very little.

Conclusion

43. I shall order the claim to be struck out as against all the defendants and also make an ECRO against Mr Garnham.