The claimant is a nurse registered with the first defendant and formerly employed by the second defendant. He commenced proceedings against both defendants in October 2012, serving a claim form complaining of harassment and breaches of the Data Protection Act 1998. No Particulars of Claim were served and, following his failure to comply with an unless order requiring him to serve Particulars, the claimant’s action was struck out.
The claimant made a number of unsuccessful applications in the action, many predicated on the allegation that both defendants had knowingly served false witness statements, and some made even after the action had been struck out. Of these, eight were found to be totally without merit.
On 8 May 2013, Leggatt J dismissed two applications made by the claimant and directed that there should be a hearing into whether the claimant should be made the subject of a civil restraint order (CRO).
In subsequently making an extended CRO, the judge reviewed the leading authorities, stating that:
- “…the rationale for the regime of civil restraint orders is that a litigant who makes claims or applications which have absolutely no merit harms the administration of justice by wasting the limited time and resources of the courts. Such claims and applications consume public funds and divert the courts from dealing with cases which have real merit. Litigants who repeatedly make hopeless claims or applications impose costs on others for no good purpose and usually at little or no cost to themselves. Typically such litigants have time on their hands and no means of paying any costs of litigation – so they are entitled to remission of court fees and the prospect of an order for costs against them is no deterrent. In these circumstances there is a strong public interest in protecting the court system from abuse by imposing an additional restraint on their use of the court’s resources” (at );
- “Restrictions on access to the courts by vexatious litigants have specifically been held to be compatible with article 6” ECHR (at );
- The three questions the court needed to ask when considering whether to make a CRO were:
(a) whether the relevant condition specified in the practice direction CPR PD3C is satisfied (at );
(b) “to ask what risk the litigant has objectively demonstrated that he will, if unrestrained, issue further claims or make further applications which are an abuse of the court’s process” (at ); and
(c) “what order, if any, it is just to make to address the risk identified” (at ).
The judge found that the claimant’s course of conduct had been persistent, and that the extent of his obduracy was evidenced not only by the number and frequency of totally unmeritorious applications made but also by the fact that the claimant continued to make them even after his claim had been struck out and judgment entered for the defendants. An extended CRO was made.
The case is a useful review and summary of the CRO rules and authorities. It is also notable for the fact that the judge did not consider the ‘default’ form of extended CRO sufficient to prevent any further abuse of process, saying:
“That is because its wording is confined to claims and applications “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made”
“…it leaves room for argument about whether a new claim does concern a matter “involving or relating to or touching upon or leading to” the proceedings in which the order is made. Although this wording is widely drawn, there is still potential to argue about what type and degree of connection falls within its scope and whether a new claim has such a connection. For example, if Mr Nowak were to issue a claim for judicial review of a step taken by the NMC in the disciplinary proceedings currently pending against him, it may be arguable whether the claim falls within the description or not. Arguing about whether a new claim against the NMC falls within the scope of the civil restraint order would itself be a sterile waste of time and cost. To avoid that risk, I think it right that the order should be couched in terms which brook no ambiguity by bringing any claim or application against the NMC or the Trust within its scope.”
“I accordingly consider that the appropriate order in this case is one which is wider than the default form of extended civil restraint order in that the order should require Mr Nowak to obtain permission before issuing any claim or making any application in the High Court or any county court (a) against either of the defendants to the present proceedings in relation to any matter or (b) against any other party in relation to any matter involving or relating to or touching upon or leading to the proceedings in which this order is made.”
The judge also directed that any communication from the claimant to the court or to any other party in or in connection with the proceedings or with any new claim or application to which the order applied must be filed or served in hard copy, and that communication by email or any other electronic means would not be treated as effective.
Caroline Addy, instructed by DAC Beachcroft, represented the Second Defendant.