These would currently appear to be flavour of the month where numerous and persistent unmeritorious applications are made by one party to litigation. The following two cases show that the court will step in and make a civil restraint order where necessary.
In Shelley v Swift Advances Plc, the defendant mortgage lender obtained a possession order and then a warrant of possession against the claimant. The claimant applied unsuccessfully to suspend the warrant and then applied for permission to appeal that refusal. That application was refused as was his subsequent application for permission to appeal that refusal.
He then applied to the High Court for permission to appeal and made numerous other applications, all of which were refused and were held to be without merit. As a result of the applications the defendant had been unable to enforce its warrant of possession.
In his absence, the court made an extended civil restraint order against the claimant. This prevented him from issuing any new proceedings or making any applications in relation to the possession proceedings for two years.
The claimant alleged it was a breach of his human rights to be prevented from making applications to court.
The court held that the extended order was appropriate and proportionate and not a breach of the claimant's rights under Article 8 of the European Convention on Human Rights. Such rights were not absolute and the rights of others who were disrupted by such frequent and unmeritorious applications had to be taken into account.
In Foster v Mortgage Express, the lender had (in other proceedings) obtained a possession order against a property forming part of the claimant's father's estate. The claimant unsuccessfully applied to set the possession order aside. The warrant for possession was stayed so the claimant could appeal that decision but he failed to do so. Instead, he unsuccessfully sought permission to apply for a judicial review.
The claimant then issued these proceedings attacking the validity and enforceability of the original mortgage and seeking damages and injunctive relief. The claimant was ordered to serve amended particulars of claim but failed to do so and instead he applied to set aside that order and sought summary judgment on his claim.
The lender argued abuse of process and sought an extended civil restraint order as the claim was totally without merit and it was likely that the claimant would further apply to suspend the warrant.
The court held that the claimant was seeking to raise the same arguments in these proceedings as had been raised in the other proceedings and these proceedings were therefore an abuse of process. The claim lacked merit and the particulars of claim were wholly unsatisfactory. The claim would be struck out.
The court held it was also just and proportionate to make an extended civil restraint order for 12 months given the number of unmeritorious applications that had been made. The lender had the right to enforce the possession order.
Things to consider
The courts do not make such orders lightly but will make them in those extreme cases where there is no merit in the numerous and frequent applications being made. Lenders should consider making such applications in the appropriate cases.