Power to make Civil Restraint Orders

London Underground Limited (LUL) successfully applied to the High Court for a General Civil Restraint Order against a former employee who had made multiple totally without merit (TWM) Tribunal claims against it: London Underground Limited v Roger Mighton [2020] EWHC 3099 (QB) (Mrs Justice Stacey).

Mighton had initiated 10 claims before the Employment Tribunal (ET), none of which were successful.

He had an obsessive approach to his employment with LUL which ended 5 years ago.

The tone and contents of his correspondence with LUL, their staff and their lawyers, the EAT and the Court of Appeal had become increasingly intemperate and inappropriate over the years and was now utterly unacceptable and contemptuous of the Court.

It was expletive-ridden and abusive and he made baseless allegations against anyone who made any rulings against him.

Six of his seven appeals to the Employment Appeal Tribunal (EAT) over a three-and-a-half-year period had been certified as TWM, as had one of his two applications to the Court of Appeal.

That alone was sufficient to meet the threshold requirements in the application before the Court, but there were seven further ET claims which were also TWM.

They were bound to fail as the issues had already been raised in previous claims and, in any event, were all now time barred.

There was no provision in the ET or EAT rules to make orders restraining litigation in the ET or EAT.  See Nursing and Midwifery Council v Harrold [2015] EWHC 2254 (QB).

CPR 3.11 put on a statutory footing the inherent power of the court to prevent abuse of its process and 3PDC was the Practice Direction made pursuant to CPR 3.11.

The three levels of Civil Restraint Order (CRO) were:

• A Limited CRO (LCRO) which may be made by a judge where a party had made 2 or more applications which were totally without merit. If granted, it restrained that party from making further applications in the proceedings in which the order was made without first obtaining the permission of a specified judge.
• An Extended CRO (ECRO) which restrained the party subject to the order from issuing claims or making applications and ancillary steps “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order was made” without first obtaining the permission of a judge identified in the order.
• A General CRO (GCRO) may be made “where the party against whom the order was made persisted in issuing claims or making applications which were totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate (3PDC pars 4.1(2)).

Although the consequences of a GCRO had been described as draconian, Warby J in Chief Constable of Avon and Somerset Constabulary v Gray [2016] EWHC 2998 described it as a “permission filter”.

A GCRO could be made for a period of up to two years which may be extended, but not for more than two years on any given occasion.

The three questions to be addressed when considering a GCRO were set out in Nowak v NMC [2013] EWHC 1932:

• Has the litigant persistently issued claims or made applications which are totally without merit pursuant to PD3C.1 (the threshold requirements)?
• Does an objective assessment of the risk which the litigant poses demonstrate that he or she would, if unrestrained, issue further claims or make further applications which would abuse the Court’s process (exercise of discretion)?
• What order, if any, is just and proportionate to make to address the risk identified (the appropriate order)?

In an application for a GCRO a third threshold requirement in addition to persistence and claims or applications being totally without merit, was the inadequacy of an ECRO.  Persistence meant more than habitual:

“there has to be an element of persistence in the irrational refusal to take No for an answer” (Bhamjee v Forsdick [2004] 1 WLR 88 para 42

In Odula v Hart [2018] EWHC 2260 (Ch) persistence was held to require a minimum of three TWM or unmeritorious claims or applications.

A court may only certify a claim or application as being TWM if it was bound to fail (Sartipy v Tigris Industries Inc [2019] EWCA Civ 225 para 27).

Once a court had made such a finding, it was binding (subject only to a successful appeal of that judgment): Crimson Flower Productions Ltd v Glass Slipper Ltd [2020] EWHC 942 (Ch) paras 26-31.

Where, at the time, no express finding had been made as to whether a claim or application was totally without merit, on the hearing of an application for a CRO it was open to a court to consider and decide the issue for itself, but it was bound by the facts before the court or tribunal.  See Nursing and Midwifery Council v Harrold (No 2) [2016] EWHC 1078 (QB).

Stacey J repeated the observations of Laing J in NMC v Harrold (No 2), that it would be desirable for ETs, when they made decisions in weak claims, expressly to consider, and to make a finding on, the question whether the claim or application was TWM in order to lay down a marker.