Given the increasing caseloads being handled, courts are keen to establish a fair approach to disposing of unmeritorious claims at an early stage. In doing so, the courts have been careful to tread a consistent line between the needs of effective administration of justice and courts and the litigant’s right of access to courts. Cases must be dealt with justly and at proportionate cost. That includes dealing with cases expeditiously and with regard to limited court resources.

Conventionally, courts at all levels have had a range of tools (both statutory and inherent) to deal with unmeritorious litigants where the claims could be characterised as abusive or vexatious. These include civil restraint orders (previously Grepe v Loam orders). From the application of these powers there developed the concept of claims or applications which were “utterly” or “totally devoid of merit” being pursued for abusive or vexatious reasons typically through a course of repetitive conduct.

As concerns have increased over apparent levels of unmeritorious litigation, the concept of cases or applications which are “totally without merit” has become ingrained into the case management process under the Civil Procedure Rules. This may potentially be as part of or as a precursor to consideration of civil restraint orders but additionally as conditions of access to further court time and resources.  

For example, where a court strikes out a statement of case (CPR r3.3(7)) or dismisses an application on its own initiative (CPR r3.3(7) and CPR r23.12) on the basis that it is totally without merit it must certify that to be the case and simultaneously consider making a civil restraint order. Additionally, where the Court of Appeal or High Court refuses permission to appeal on the papers (CPR r52.3(4A)) and considers the application to be totally without merit, it can make a further order preventing the applicant from requesting the reconsideration of the decision at a hearing. CPR r54.12(7) which was part of the 63rd CPR update went one further by automatically preventing an applicant from requesting reconsideration at an oral hearing where permission to apply for judicial review was refused on the certified basis that it was totally without merit. Any application for permission to appeal that decision would also be on paper only.

However, is the definition of the term “totally without merit” the same in all these contexts? Or has the development of the concept and term in the context of ordinary case management distinct from that developing in the context of a civil restraint order?  

Against the background of the Government’s much vaunted reforms to reduce judicial review cases, guidance on the interpretation of “totally without merit” (as it applied to judicial reviews) was sought from the Court of Appeal in the case of R (on the application of Grace) v Secretary State for the Home Department.

The Court of Appeal has rejected the notion that “totally without merit” was to be interpreted in the context of civil restraint orders to cover only those actions which were abusive or vexatious. Whilst the full judgment of 9 June 2014 has yet to be seen, it appears that the court has accepted that in expanding the concept of cases which are “totally without merit” into aspects of ordinary case management, the explicit purpose was to control and reduce the impact of unmeritorious litigation on court resources regardless of whether or not they were also abusive or vexatious. Consequently, it was not same test as that applicable to civil restraint orders.

Having originated in the specific context of civil restraint orders, the term “totally without merit” has, in the context of the court’s case management responsibilities, now shed its association with abusive and vexatious claims to mean merely cases which are “bound to fail”. In the context of applications for judicial review therefore it becomes even more important to ensure that applications are prepared as comprehensively as possible in the first instance. With the courts increasingly under pressure to dispose of unmeritorious applications as soon as possible, when it comes to demonstrating merits, there is no guarantee of a second bite of the cherry.