22 March 2019 - Article
Litigation can often be a trying process, but what does a party to litigation do when faced with the unpalatable situation of having a claim issued against them by a litigant in person who fails to follow procedure and bombards the court with irrelevant materials and/or applications that are ‘totally without merit’? And what if the litigant in person refuses to accept the court’s rejection of their applications or claims, and persists returning to court to ask again and again for essentially the same relief?
In theory, the court’s power to make a party pay the other side’s costs in failed applications and claims should deter this behaviour. But in these rare cases, the litigant in person is often impecunious, so is not paying any court fees to issue claims or applications, and has no money to pay costs orders made against them. Knowing that the court must give litigants in person a considerable degree of latitude, the other party and their lawyers cannot simply ignore this behaviour, and can end up incurring significant costs dealing with each application and claim made by the persistent litigant.
There will come a point when applications to strike out and repeated appearances to defend and challenge unmeritorious applications have proved fruitless in deterring the ‘aggrieved’ litigant. Then the recipient needs to consider taking the initiative and invoking the court’s power to issue a civil restraint order.
The provisions for civil restraint orders are found in the Civil Procedure Rules at Rule 3.11, supplemented by Practice Direction 3C. The Rules provide for three types of civil restraint order (CRO) to be made by the court:
- a limited civil restraint order
- an extended civil restraint order, and
- a general civil restraint order.
The key criterion for any application for a CRO is that the litigant has issued claims, or made applications, which are ‘totally without merit’. The number and persistence of the claims or applications determines which of available orders is appropriate. If the court finds itself dismissing applications or striking out claims for being ‘totally without merit’ the judge should proceed to consider whether a CRO is appropriate.
A limited civil restraint order will prevent a litigant making any application in the proceedings in which the order is made without first obtaining the permission of the judge identified in the order. If the litigant does make an application without first obtaining permission, that application will be automatically dismissed. There is an added protection that if the litigant continues to make applications, the decision to dismiss will be final, so there is no right of appeal, unless the judge who refuses to permit the application grants permission to appeal. This type of civil restraint order is ‘limited’ in that it is confined to the particular proceedings in which it is made, and will remain in effect for the duration of the proceedings, unless the court orders otherwise.
If the litigant’s behaviour is more persistent, then it may be necessary to apply for an extended civil restraint order. This goes further than the limited civil restraint order in that it restrains the litigant from making applications or issuing fresh claims in specified courts concerning any matter relating to the proceedings in which the order is made without first obtaining the permission of the judge identified in the order. This type of CRO provides greater protection by curtailing the litigant’s activities beyond the immediate proceedings and in other courts.
In the most extreme cases, the court may deem it appropriate to grant a general civil restraint order. This CRO is similar to the extended civil restraint order, but goes further to restrain the litigant from issuing any proceedings or applications in specified courts regardless of subject matter without first obtaining permission of the judge named in the order.
Both the extended and general CROs must be made by a judge and can only restrain the litigant in relation to courts at the same level or lower than the court making the order. The court can exempt specific proceedings from the order, if it is satisfied that those proceedings do have merit and should be allowed to continue unfettered.
If the affected party is applying for a CRO, the usual application procedure is to be followed, which means, in general, an application on notice to the litigant concerned. Notice will of course give the litigant a window in which to issue a final rash of applications or claims before the CRO hearing. If the court believes this to be a serious risk, and the court generally is aware of this risk, it may make an interim civil restraint order to prevent any such activity before the hearing takes place.
What the bare bones of the Rules do not say is that the CRO is not simply a matter of protecting a party in a particular set of proceedings. The purpose behind the Rules, which are the statutory expression of the court’s long standing inherent jurisdiction, is also to prevent the abuse of court process and the wasting of court resources. The wider benefit of the extended and general CROs, beyond the proceedings in which they are issued, is evidenced by the fact that litigants who are subject to one of these orders are listed on the Ministry of Justice website.
It has also been recently demonstrated that, at least when it comes to renewing a general CRO at the end of its initial term, an interested third party can make that application. Both the extended and the general CRO can only be made for an initial period of not more than two years, but each may be renewed, for up to a further two years, if the court considers it appropriate. In one of our recent cases we obtained a renewal of a general civil restraint order on behalf of an interested third party, not the original applicant. The insurer in this case applied in existing proceedings for an extension of the general civil restraint order for another two years so as to protect its members and the public, given that the litigant in question had clearly indicated that their campaign against a number of its insured would continue if the original CRO expired.
The benefits of securing a CRO are clear. A CRO provides a filter that the persistent litigant must pass through before further applications or proceedings are issued. This saves a significant amount of time and costs for the party or parties being targeted and generally provides a wider public interest benefit to the taxpayer and the courts themselves.
It should also be noted that the standard CRO of whichever sort includes an express warning that if the litigant does not comply with the directions contained in the order this will be a contempt of court, and may result in a prison sentence.
Civil restraint orders are not appropriate for every situation, but they can constitute, in a small number of difficult cases, a valuable tool by which a lawyer can protect their clients and significantly reduce the costs of dealing with the persistent litigant.