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Blogs / 29-01-2016
This article was first published by Family Law Journal in February 2016
Emma Morris examines the powers of the courts to make civil restraint orders and the circumstances in which such an order may be appropriate.
The case of Welch v Welch [2015] has a long and complicated litigation history, often driven by the vexatious litigation behaviour of the wife. In his judgment dated 2 June 2015 DJ Hess (as he then was) said in relation to the wife's behaviour (at para 33):
'IT SEEMS TO ME THAT SHE IS MORE VENGEFUL THAN EVER, BLIND TO THE REAL WORLD, BLIND TO THE SITUATION SHE HAS FOUND HERSELF IN, BLIND TO THE WARNINGS THAT I GAVE HER…AND TO THE COST CONSEQUENCES OF PURSUING ALL OF THESE MATTERS.'
THE DECISION IS A RELATIVELY RARE EXAMPLE OF THE CIRCUMSTANCES IN WHICH THE COURT MAY MAKE AN EXTENDED CIVIL RESTRAINT ORDER. THIS ARTICLE WILL CONSIDER THE RELEVANT LAW, THE DECISION IN WELCH AND WIDER CONSIDERATIONS WHERE A LITIGANT MAY BE CATEGORISED AS 'VEXATIOUS'.
How bad does a party's litigation conduct have to be to warrant a civil restraint order being granted? The criteria for the making an extended civil restraint order is set out in the Family Procedure Rules 2010 (FPR 2010), PD 4B, and refers to applications that are 'totally without merit'. The court may make a limited, extended, or general civil restraint order. Note that limited civil restraint orders may not be granted by lay justices or district judges, and that extended or general civil restraint orders may not be granted by lay justices, district judges or circuit judges except that such orders may be granted by a designated family judge or a deputy designated family judge (per Family Court (Composition and Distribution of Business) Rules 2010, SI 2010/840, Sch 2).
Limited civil restraint order
A limited civil restraint order may be made where a party has made a minimum of two applications that are 'totally without merit'. Such an order will last for the duration of the proceedings in which it is made, unless the court orders otherwise (FPR 2010, PD 4B, paras 2.1-2.9).
Extended civil restraint order
An extended civil restraint order may be made where a party has persistently made applications which are totally without merit. Such an order was made in Welch. There are specific requirements as to the terms of such an order, FPR 2010, PD 4B, para 3.9 provides that an extended civil restraint order:
will be made for a specified period not exceeding two years;
must identify the courts in which the party against which the order is made is restrained from issuing claims or making applications; and
must identify the judge or judges to whom any application for permission should be made.
An extended civil restraint order must specify how the person on whom the order is to be imposed may seek to amend or discharge the order and/or seek permission to appeal the order (FPR 2010, PD 4B, para 3.2(b)-(c)).
Once the criteria for an extended civil restraint order is established, ie persistently making applications that are totally without merit, the court can then go on to consider all the information it has in deciding whether or not to exercise its discretion. The type of behaviour the court is looking was described in Bhamjee v Forsdick (No 2) [2003] as follows (at para 53):
'IF A LITIGANT EXHIBITS THE HALLMARKS OF PERSISTENTLY VEXATIOUS BEHAVIOR, A JUDGE OF THE COURT OF APPEAL OR THE HIGH COURT OR A DESIGNATED CIVIL JUDGE (OR HIS APPOINTED DEPUTY) IN THE COUNTY COURT SHOULD CONSIDER WHETHER TO MAKE AN EXTENDED CIVIL RESTRAINT ORDER AGAINST HIM. THIS ORDER, WHICH SHOULD BE MADE FOR A PERIOD NOT EXCEEDING TWO YEARS, WILL RESTRAIN THE LITIGANT FROM INSTITUTING PROCEEDINGS OR MAKING APPLICATIONS IN THE COURTS IDENTIFIED IN THE ORDER IN OR OUT OF OR CONCERNING ANY MATTERS INVOLVING OR RELATING TO OR TOUCHING UPON OR LEADING TO THE PROCEEDINGS IN WHICH IT IS MADE WITHOUT THE PERMISSION OF A JUDGE IDENTIFIED IN THE ORDER.'
General civil restraint order
A general civil restraint order may be made where a party persists in making applications that are totally without merit, and the circumstances are such that an extended civil restraint order would not be sufficient or appropriate (FPR 2010, PD 4B, para 4.1).
This is the widest, and most punitive, form of civil restraint order and, unless the court orders otherwise, a party against whom such an order is made (FPR 2010, PD 4B, para 4.2):
will be restrained from making any application in any court without first obtaining the permission of a judge identified in the order;
may apply to amend or discharge the order, but only with the permission of the judge so identified; and
may apply for permission to appeal the order, and if permission is granted, may appeal the order.
Where an application for permission is made by a party subject to such an order, the application must be served on the other party to the proceedings, setting out the grounds of the application and giving at least seven days notice (FPR 2010, PD 4B, paras 4.4-4.5).
The effect of a general civil restraint order is that if a party who is subject to one makes an application to any court without first obtaining permission, the application will be automatically struck out or dismissed (FPR 2010, PD 4B, para 4.3(a)). In extreme cases repeated applications for permission that are totally without merit may be dismissed with no right of appeal (FPR 2010, PD 4B, para 4.3(b)
This was a second marriage for both parties, stated to have lasted six years, with no children of the marriage. Following issues that had arisen in previous hearings, Holman J made an extended civil restraint order restraining the wife in the following terms (para 60):
'…FROM MAKING ANY FURTHER APPLICATION AGAINST [THE HUSBAND] IN ANY CIVIL COURT CONCERNING ANY MATTER INVOLVING, OR RELATING TO, OR TOUCHING UPON, OR LEADING TO PROCEEDINGS UNDER CASE NUMBER GU13D00045, WITHOUT FIRST OBTAINING PERMISSION FROM HIS HONOUR JUDGE HESS SITTING IN THE SINGLE FAMILY COURT AT PORTSMOUTH.'
The order was subject to the proviso that nothing in the first paragraph of the extended civil restraint order would:
'…PREVENT THE APPLICANT FROM MAKING A FURTHER APPLICATION TO HIS HONOUR JUDGE HESS FOR A VARIATION IN THE LEVEL OF PERIODICAL PAYMENTS AND/OR THE DISCHARGE OF THE SUSPENSION IMPOSED BY HIM IN PARAGRAPH 16 OF THE ORDER DATED 5 JUNE 2015, BASED ON THE GROUNDS THAT IN JULY 2015 JOB CENTRE PLUS DETERMINED THAT THE APPLICANT IS NOT CAPABLE OF WORKING, AND AWARDED HER "EXTRA MONEY".'
In Welch, Holman J had characterised some of the wife's applications as 'totally without merit' on dismissal (para 57), and in such circumstances the court must consider making a civil restraint order (rr30.11(4)-(5), FPR 2010). The court may also consider taking such steps under its inherent jurisdiction (Bhamjee v Forsdick).
The husband may have had a justifiable expectation of being granted a cost order in relation to those applications. Holman J, however, chose to make no costs order stating that to do so, given the wife's financial situation, would be purely punitive. It could be argued that not making a cost order in a situation like this may give the wrong message, and that perhaps in such cases a costs order should be made in the same way as it would be if the litigant in person had a lawyer, especially where warnings have been repeatedly given. The counter argument is that such difficulties may sometimes stem from the removal of legal aid for many types of family cases and the resulting increase in litigants in person.
Veluppillai
The courts have acknowledged increasing concerns regarding vexatious litigants, perhaps compounded by the greater numbers of litigants in person, one example being the decision of Mostyn J in Veluppillai v Veluppillai [2015], when he granted an extended civil restraint order within ancillary relief proceedings. Mostyn J described the scenario he was faced with as follows (at para 1):
'ACCORDING TO [THE WIFE'S] COUNSEL'S FINANCIAL SCHEDULE THE NET ASSETS AMOUNT TO AROUND £1.3M. IT IS A ROUTINE NEEDS CASE FOLLOWING A 20 YEAR MARRIAGE. ONE MIGHT ASK THEREFORE: WHY IT IS LISTED FOR HEARING IN THE HIGH COURT WITH A TIME ESTIMATE OF 4 DAYS AND WHERE THE WIFE HAS INCURRED COSTS ON THE INDEMNITY BASIS OF AROUND £150,000? THE ANSWER IS THE CONDUCT OF THE HUSBAND. IT HAS BEEN TRULY ABYSMAL. SINCE THE CLAIM WAS COMMENCED IN SEPTEMBER 2012 THERE HAVE BEEN OVER 30 HEARINGS INCLUDING FOUR APPEALS MOUNTED BY THE HUSBAND. THIS DELUGE HAS BEEN CAUSED BY THE HUSBAND'S EXTREME LITIGATION MISCONDUCT.'
The case also involved threatening emails sent to the judges involved and Mostyn J directed that all of the husband's emails to the court since 8 October 2015 would be sent to the Commissioner of the Police for the Metropolis for him to decide if any of the threats contained in them amounted to criminal offences. He also waived privacy in this case stating that it be in the public interest for the husband's conduct to be exposed, saying (at para 17):
'THERE IS NO DOUBT THE HUSBAND'S MISCONDUCT HAS BEEN AT THE EXTREME END OF THE SPECTRUM. IT IS IN THE PUBLIC INTEREST FOR HIS CONDUCT TO BE EXPOSED. THE PUBLIC SHOULD BE AWARE OF THE SCALE OF PROBLEMS THAT COURTS ADMINISTERING JUSTICE AND IMPLEMENTING THE RULE OF LAW HAVE TO FACE AT THE HANDS OF UNREPRESENTED AND MALEVOLENT LITIGANTS DETERMINED TO DO EVERYTHING THEY CAN TO DESTROY THE PROCESS. I APPRECIATE THAT THE WIFE, WHO IS WHOLLY INNOCENT, WILL LOSE HER RIGHTS TO PRIVACY BY VIRTUE OF THIS JUDGMENT BEING PUBLISHED WITHOUT ANONYMISATION BUT IN MY OPINION THE PUBLIC INTEREST IN THE WHOLE TRUTH BEING KNOWN OUTWEIGHS HER PRIVACY RIGHTS.'
Given that the courts' resources are not infinite, and the rising numbers of litigants in person, the granting of civil restraint orders may start to become more common. It is arguable that this would free up valuable court time, allowing the courts to focus on other cases. It would also serve to protect other parties from the stresses of litigation, and perhaps even their lawyers.
Welch v Welch [2015] EWHC 2622
Welch v Welch [2015] GU13D00045
Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113
Veluppillai v Veluppillai [2015] EWHC 3095 (Fam)
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