Where a party's behaviour indicates an intention to re-litigate matters previously struck out and to frustrate the other party's rights, the court will step in to avoid further costs and court time being wasted and grant a civil restraint order.

In JL Homes Ltd v Mortgage Express, Diakiw and Heap (acting as LPA receivers) the court did just that. The claimant owned six buy-to-let properties mortgaged to Mortgage Express. Arrears accrued, LPA receivers were appointed and possession orders were made in relation to five of the properties.

The claimant had alleged the LPA receivers had been wrongly appointed (despite the mortgage arrears and the fact the tenants in the properties had not been consented to) and made a number of other claims which the court also held were without foundation.

The court had previously struck out the claim holding that the claimant was attempting to re-litigate hopeless allegations which had previously been struck out and that this and his previous three claims or applications were totally without merit. The claimant's actions had put Mortgage Express to unnecessary expense and frustrated the LPA receivers' function. The fact that the tenants were paying rent to the claimant but that it was in arrears with its mortgages was evidence of its cavalier attitude towards Mortgage Express.

The court then went on to consider whether a civil restraint order was appropriate. The jurisdiction to make such an order is engaged where a party "persistently" issues claims or makes applications which are totally without merit. It was common ground between the parties here that "persistently" meant a minimum of three claims or applications. The jurisdiction was engaged in this case and the court made an extended civil restraint order, awarding costs against the claimant on the indemnity basis.

Things to consider

In cases such as this, it is worth asking the judge hearing unmeritorious applications to include in the wording dismissing the claim or application that it is "without merit". By doing so, any argument that previous claims or applications may have been ill founded but not "without merit" can be met head on and the process of obtaining a civil restraint order made easier and swifter.