Civil restraint orders (CROs) are important tools in the fight against vexatious litigants. This article examines how, and when, such orders may be made against those who won’t take “no” for an answer.
The ‘steadily increasing nuisance’
It has been said that for as long as there have been courts, there have been vexatious litigants – those who bring claim after claim “habitually and persistently and without reasonable grounds”. However, as observed in Bhamjee, the number of spurious claims being brought in recent times has been a “steadily increasing nuisance”. Whilst these claims are usually disposed with by prompt applications for strike out and/or summary judgment, this is still time-consuming and costly. So how can the courts, and those on the receiving end of such unwarranted claims, exercise some measure of restraint over these serial litigants?
Vexatious litigant orders
The Attorney General can apply to the High Court for an order that a party be declared a “vexatious litigant”. Such a declaration prevents that party from issuing proceedings without the leave of the court, either for a specified period or indefinitely. However, these applications are brought only in exceptional circumstances – only 190 “vexatious litigants” have been declared since 1950.
Civil restraint orders
CROs are a quicker and more flexible alternative to the vexatious litigant order. Under CPR 3.11 and Practice Direction 3C, the court can make three different types of CRO:
- A limited CRO (LCRO) – may be made where a party has made two or more applications which are “totally without merit”, and restrains that party from making further applications in those proceedings without first obtaining the permission of the judge identified in the LCRO.
- An extended CRO (ECRO) – may be made where a party has “persistently” issued claims, or made applications, which are totally without merit. In Courtman v Ludlam it was held that three such claims or applications were the “bare minimum” needed to be considered persistent. An ECRO restrains the party from issuing claims or making applications “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made” without first obtaining the permission of the judge identified in the order.
- A general CRO (GCRO) – may be made where a party “persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate”. A GRCO restrains the party from issuing any claims or making any applications without first obtaining the permission of the judge identified in the order.
Both ECROs and GCROs last for a specified period not exceeding two years, but may be extended by up to another two years at a time if the court considers it appropriate to do so. LCROs usually last for the duration of the proceedings to which they apply.
With ECROs and GCROs, the courts in which a party will be restrained from issuing claims or making applications will depend upon the level of judge making the CRO. An order by a judge in the Court of Appeal will bind all courts, one by a High Court judge will bind the High Court or any county court, and a CRO made by a designated civil judge or his deputy will only bind the county court(s) specified in the order.
CPR 3.3(7) and 3.4(6) provide that where a court finds an application or claim to be “totally without merit”, the court must record that fact, and must at the same time also consider whether a CRO should be made. It is also open to the other party, or parties, to the proceedings to apply for CROs using the CPR Part 23 procedure.
From a practical standpoint, where a party has been successful in getting a really hopeless application or claim struck out, it would be prudent to draw the CRO provisions to the court’s attention, and request that the court makes a “totally without merit” finding.
If a party who is subject to a CRO makes further applications or claims without first obtaining the permission of a judge identified in the CRO, such applications or claims will automatically be dismissed without the judge having to make any further order, and without the need for the other party or parties to respond to it. This is the crucial benefit to defendants, and could avoid a great deal of wasted time and expense.
The courts' approach
In Bhamjee, the Court of Appeal urged judges to be “more willing to make extended civil restraint orders in light of the steadily increasing nuisance represented by vexatious litigants”. It appears that the courts have, in general, been willing to exercise this discretion where appropriate.
In Courtman v Ludlam a husband and wife made a number of applications which were totally without merit in relation to their bankruptcies and forced sale of their house. The judge made an ECRO against the husband, stating that “[the husband’s] past history makes it quite clear that he will not take ‘no’ for an answer and he will issue proceedings irrespective of their merits”. An LCRO was made against the wife, who had made two applications which were totally without merit.
In Supperstone v Hurst the court made ECROs against a husband and wife who had persistently issued claims and made applications which were totally without merit, but held that the CRO procedure did not extend to preventing the husband and wife from corresponding with the applicant – the Protection from Harassment Act 1997 was designed for such protection.
In Harris v Society of Lloyd’s, the court made ECROs against no fewer than 50 former Lloyd’s “names”, finding that the former Lloyd’s members had persistently pursued applications and claims labelled “hopeless” or “an abuse of process” which “exhibited all the hallmarks of a campaign of proceedings that would formerly have been characterised as vexatious”.
This is not to say that the court may not sometimes adopt a more cautious approach. In a recent case, dealt with by our Norwich office, a judge struck out a claim by a litigant in person against five defendants, but was prepared to make the distinction of finding the claim against two of the defendants to be “totally without merit”, but “without merit” against the other three.
However, it is anticipated that CROs will continue to increase in popularity, to the benefit of the courts and defendants alike.
- Civil restraint orders prohibit a party from issuing further applications or claims without first obtaining the court’s permission
- Defendants are not required to respond to any subsequent applications or claims which are made without the court’s permission, saving valuable time and expense
- In suitable claims, consider asking the court to record that an application or claim is “totally without merit”, in order to lay the groundwork for obtaining a CRO at the earliest possible opportunity