Some of you in the world of personal injury and clinical negligence may have had the misfortune of encountering vexatious litigants. Those litigants where another file opens, before the last file is closed - where much time, money and energy is spent on claims and applications that are eventually struck out as being totally without merit.
Following the case of Russell West v Gary Taylor-Duncan & Ors  handed down on 12 September 2013, I thought a brief post on Civil Restraint Orders might be called for. In my experience, these orders are being sought more frequently. However, one must be careful to ensure that they are applying for the correct type of order and that they pass the relevant hurdles. It can be all too tempting to apply for the most extensive order too soon.
- A Limited Civil Restraint Order binds the Claimant from making further applications in the index claim without first obtaining permission.
- An Extended Civil Restraint Order (which is not the most “extensive” order, despite what the name may suggest) prevents the litigant from issuing further applications or claims.
- Lastly, the General Civil Restraint Order prevents the litigant from issuing any claim or application in any of the specified courts without first obtaining permission.
It is long since accepted that these orders do not infringe Article 6 of the European Convention on Human Rights because it does not bar the subject of the order from litigating; it simply limits their freedom to litigate so that they must obtain permission before issuing.
It is often tempting to rush for the General Civil Restraint Order. But these orders are made in very limited circumstances. The case of West v Taylor-Duncan (2013) helpfully demonstrates the point.
Mr West had persistently issued unmeritorious claims and re-litigated matters. The Court had no trouble concluding that a Civil Restraint Order of some kind was appropriate.
The Court carefully reviewed the seven unmeritorious claims and found that there was a “common thread” between them – thus suggesting that an Extended CRO was appropriate. Indeed, in some respects there was a significant overlap between the claims (in terms of cause of action and the facts), which is why the Master had stated that some of them were wholly without merit.
On behalf of the Defendants it was argued that some of the claims were wider than the index claim, and sought a General Civil Restraint order on the basis that Mr West was now issuing claims based on a wider factual and legal basis. The Court found that there was some force in the Defendants’ argument that some of the claims went wider than the index claim. However, the matter was borderline and the court had to be satisfied that an extended Civil Restraint Order would not be appropriate in order to make a General CRO. There was no doubt that if Mr West continued in the same vein and brought wholly without merit claims not caught by an Extended CRO, a General CRO would suitable; however, it was not yet appropriate. Accordingly, Mr West was made subject to an Extended CRO.
This illustrates that you must be prepared for the court to closely examine the earlier claims and applications (simply evidencing that the claims were struck as totally without merit is not sufficient), and you must satisfy the court that the less extensive order is not sufficient.
If the Extended CRO proves insufficent, it remains open to you to make a further application for a General CRO during the course of the Extended CRO, concerning any matter involving and/or relating to and/or touching upon and/or leading to the index proceedings without first obtaining permission. This could mean more time, cost and energy - but you just might get there in the end!