Civil restraint orders/vexatious litigants
In the last edition of our Housing Management and Property Litigation Brief published in April 2023, my colleagues Lee Russell and Pauline Lépissier gave some really valuable and helpful guidance on dealing with Court proceedings where your opponent is a litigant in person (“LiP”). That article can be found here.
As the article suggests, the legal costs of dealing with a matter where your opponent is a LiP can be significantly higher than those incurred when the opponent has legal representation. Costs can also be unpredictable due to the LiP’s conduct of the proceedings.
One issue which can cause costs to potentially spiral is the repeated issue of unnecessary and baseless interim applications during the proceedings. Applications can often be repetitive in nature, seek to divert attention away from the main facts in dispute or regularly be without any merit or prospect of success whatsoever.
Devonshires were recently successful in obtaining a Limited Civil Restraint Order against a defendant tenant who had issued numerous applications in this way. Civil Restraint Orders are relatively uncommon and are often an overlooked part of the court rules. Used in appropriate cases however, they can be extremely effective.
What is a Civil Restraint Order?
A Civil Restraint Order (“CRO”) is an Order made by the court which effectively prevents a party in proceedings from relitigating the same issue time and time again. The CRO will prevent the party subject to the Order from, for example, issuing any further applications in the proceedings without the permission of a Judge being obtained in the first instance.
This powerful tool can help to curtail the behaviour of a litigant that seeks to frustrate court proceedings or who is perhaps targeting a particular organisation with numerous claims being issued against them.
What are the Different Types of CRO?
There are three different types of CRO’s available from the court. These are:
1. A Limited CRO – this will prevent a party to the proceedings issuing any sort of application, in that specific set of court proceedings only, without first obtaining a Judge’s permission to do so. This effectively introduces a two step process for any litigant subject to a Limited CRO who wishes to make further applications in those particular proceedings.
A Limited CRO will remain in place for the duration of the proceedings within which it is made unless the court orders otherwise. This can be a helpful tool where you are faced with, perhaps, a vexatious LiP who repeatedly makes groundless application after application.
If any further applications are made without first seeking the permission of a Judge, any such applications will be automatically dismissed with the other party having to respond to it. This will mean that any application issued after the making of a Limited CRO need only be given the very briefest of consideration and no formal response will be required.
2. An Extended CRO – an Extended CRO goes a step further than a Limited CRO and not only prevents the party subject to the order from making certain applications in proceedings but can also prevent them from issuing certain claims as well without first seeking the permission of a Judge. An Extended CRO also applies more widely and is enforceable not just in one set of proceedings or in one court but, can also be relied upon in a prescribed set of courts generally.
An Extended CRO can be useful not only where, for example, a LiP fails to abide by a Limited CRO but also where a LiP may issue multiple vexatious claims against a party, all of which are bound to fail.
An Extended CRO will last for a set period of time not exceeding 3 years but can be extended by the court if appropriate.
3. A General CRO – this type of CRO is reserved for the most extreme cases where a party to proceedings is so vexatious that an Extended CRO would not be sufficient to restrain their behaviour. A General CRO prevents the party subject to it from issuing any claim or making any application in specified courts and is therefore extremely wide ranging.
To further underline the seriousness of a General CRO being made, breaching any such order made can be classed as a contempt of court, the ultimate sanction for which is a custodial sentence.
When can a CRO be Made and Who Can Make the Order?
To obtain a Limited CRO, a party in the proceedings must have made two or more applications in those particular proceedings that a Judge goes on to find are “totally without merit” i.e. they are so flawed or without any prospect of success that the applications are bound to fail. Any level of Judge in the civil courts can make a Limited CRO.
For an Extended CRO to be made, it must be proven that a party to proceedings has persistently issued claims or applications that are totally without merit. “Persistently” has been decided to mean three or more such applications or claims. Unlike with the Limited CRO, the applications relied upon here can be in different proceedings and do not have to be restricted to one claim. An Extended CRO can only be made by a Court of Appeal Judge, a High Court Judge or a Designated Civil Judge or their deputy.
The provisions for a General CRO are very similar to those for an Extended CRO but it must also be shown that an Extended CRO would not be sufficient or appropriate taking into account the circumstances.
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How is a CRO Made?
A CRO can either be made following a formal application notice being issued by a party to the proceedings or by the court’s own initiative where an application or a claim has been dismissed and found to be totally without merit.
Practical Considerations
The CRO is a powerful tool and must be used in the right situation. Below are some situations where a CRO could be granted by the court to give a practical insight into the types of cases where such orders could potential be sought:
1
A defendant to a possession claim makes numerous applications to the court during the run up to trial seeking various different orders such as permission to amend their defence and for specific disclosure of documents that are known not to exist. The issue of the applications is simply a delaying tactic and to distract from the real issues in dispute. All applications are totally without merit and bound to fail. This could be a situation where a Limited CRO could be applied for.
2
A disgruntled former tenant of a social housing provider issues numerous vexatious claims against not only the organisation but individual members of staff including the Chief Executive, Housing Officers and wardens at a sheltered housing scheme. All claims include outlandish and unfounded allegations and all claims are struck out. Here, because there are numerous separate claims being issued, an Extended CRO would be more suitable than a Limited CRO.
3
A defendant to an injunction application issues various applications to adjourn proceedings on the basis that they have not yet obtained legal advice despite the proceedings having been ongoing for 12 months. Other applications issued are confused and it is difficult for the claimant landlord to determine what order is being sought and is therefore unable to respond to them. All applications are dismissed and found to be totally without merit. This is another example of where a Limited CRO may be appropriate.
If you are faced with such litigants you may wish to consider the following:
- Ensuring that any litigant that seeks to frustrate legal proceedings or to abuse the court process in the ways described above are identified at an early stage. It may be that several teams within an organisation are dealing with the litigant at the same time and a joined-up approach between those teams is essential.
- Review any previous litigation with the individual you are now dealing with. Have they exhibited this behaviour before? The court can take account of previous applications or claims issued even where they have not formally been recorded as being totally without merit. You may need to put any such previous behaviour before the court for consideration if the current proceedings are subject to the same behaviour.
- Ensure that you are communicating with the litigant in very clear terms to confirm that the applications made or claims issued are in your view totally without merit and you will be asking the court to make such a finding.
- Ensure that when any such application or claim is dismissed that the Judge specifically records in the order made that they have found them to be totally without merit. It is important to seek this specific wording in any orders made to make the application for a CRO easier. Although the Court can take account of earlier orders that do not specifically contain the wording “totally without merit”, it is a much easier test to prove if the orders do include this wording.
CRO’s are not commonly used and must be used in the right circumstances. They are, when used correctly, very effective in dealing with the unacceptable use of the court process by an opponent.
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