Thursday, 6 July 2017

Halting The Persistent Litigator

This is about any litigant who cannot take no for an answer. It could be you. Or it could be your opponent in court proceedings. 

There's a deft way to deal with the litigant who keeps making the same application in the course of a case or keeps starting new proceedings alleging the same things as they alleged in the previous proceedings which were thrown out by the court.  It's called a (cue drum roll) civil restraint order (see
http://www.breakinglaw.co.uk/search/label/civil%20restraint%20orders)

Let's take repeated applications in the same case. As an example, the county court frequently sees a series of applications for a judgment to be set aside which each time is based on the same argument. If you are on the other side and the first application is thrown out, you should ask the judge to certify that the application is totally without merit. When the second but identical application is heard and thrown out, you should ask the judge to certify in exactly the same way and, at the same time, make a limited civil restraint order. This will prevent yet another application in the case being allowed without the prior permission of the judge so you will hopefully be spared a third, fourth and fifth day off work.

If repeated claims are made or repeated applications (or a combination of claims and applications within the claims) which are totally without merit then the court can make the more severe extended civil restraint order. This will prevent the opponent from making further claims or applications relating to any identified matter (for example, that "The defendant Stephen Gold winked at me outside Waitrose and thereby caused me to swallow the sweet I was sucking which gave me acute indigestion and so I claim damages and and an injunction to forbid him from winking at anyone in the future.")  for a period of up to two years although the order may later be extended. To justify this the obsessed litigant must have acted persistently. But how many claims/applications do you need for that? Three will do. That's what the High Court has just ruled in CFC 26 Ltd and another v Brown Shipley & Co Ltd and others [2017] EWHC 1594 (Ch). 

In this same case, the judge held that the court could take into account claims and applications made by someone other than a named party. So, for example, if you brought a hopeless case in your own name and then brought two other hopeless claims in the name of  a company you owned which all raised the same nonsense then all three cases could be reckoned when the court came to decide whether you had been persistent.

Should you be the one not taking no for an answer, be warned that your conduct is almost certainly going to earn you orders for costs against you. The small claims costs protection will be of no help.

Restraint orders of this kind are available in family as well as civil proceedings,