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Home > Articles > 2011 archive

Civil Restraint Orders in the Family Courts

Matthew Burman, a pupil barrister at Coram Chambers, considers a new addition to the family procedural code

Matthew Burman, Barrister, Coram Chambers

Matthew Burman, pupil barrister, Coram Chambers

After years of consultations and policy discussions, the Family Procedure Rules 2010 (FPR 2010) are finally in force. Providing practitioners with a single unified code for the High Court, county courts and magistrates' courts, they represent the most significant change to the family courts for almost twenty years. So far, press coverage of FPR 2010 has mainly focused on the emergence of a whole new raft of forms and the increased emphasis on mediation as a precursor to litigation. However, there is another element of this new code that has been mostly overlooked hitherto – the introduction of the civil restraint order (CRO). Whilst this is not in fact a new remedy in family law, it will be the first time that such a remedy has been incorporated into the rules of procedure for family courts.

This article will seek to:

  1. Outline the key characteristics of CROs and their origins;
  2. Identify the different types of CRO available; 
  3. Outline the relevant procedure; and 
  4. Explore the potential application of CROs in the family courts.

So what is a CRO?
In basic terms, a CRO is an order that stops vexatious litigants from repeatedly making applications that clearly have no merit. The CRO can be traced back to the CPR 1998, which provides the following definition in r2.3(1):

"'civil restraint order' means an order restraining a party –

(a) from making any further applications in current proceedings (a limited civil restraint order);
(b) from issuing certain claims or making certain applications in specified courts (an extended civil restraint order); or
(c) from issuing any claim or making any application in specified courts (a general civil restraint order)."

The very same definition is now given to CROs in FPR 2010 r2.3. Needless to say, the court could never make an order restraining someone from making any application in any court, as this would be entirely incompatible with a person's right to a fair trial under Art 6 of the European Convention on Human Rights (not to mention pretty much every other right protected by that convention!). Nevertheless, the CRO does provide the court with a very powerful remedy when faced with a vexatious litigant and, more particularly, one who has issued a number of unmeritorious applications within a given set of proceedings.

Origins of the CRO
The origins of the CRO can be traced back to the decision of the Court of Appeal in Bhamjee v Forsdick (Practice Note) [2003] EWCA Civ 113. The claimant, Ismail Abdullah Bhamjee had issued numerous unmeritorious claims and applications against, among others, solicitors and barristers who had acted for other parties in other litigation he had brought.

The then Master of the Rolls, Lord Phillips of Worth Matravers referred to "the nuisance which these activities represent for the judges, lawyers and staff of this court", and how "the resources of the courts themselves… require protection". With the arrival of CPR 1998 came a new overriding objective of the court to deal with cases justly, which meant dealing with them expeditiously and allotting them an appropriate share of resources. This objective was, according to Lord Phillips, "thwarted… if litigants bombard the court with hopeless applications".

Lord Phillips therefore provided the following guidance on what to do when faced with an application totally devoid of merit (at para 54):

  1. If a court at any level considers that an application or a claim or statement of case is totally devoid of merit it should say so, and this reason should appear on the face of the order.
  2. It is desirable that a record should be kept of all such orders both at the court centre at which they were made and on a national basis.
  3. Procedural judges should be alert to identify cases in which it may be appropriate for them to use their own initiative to consider whether to strike a claim out under CPR 3.3 as being totally devoid of merit before the proceedings are served on the other party.
  4. A judge at any level of court should consider whether to make a civil restraint order if a litigant makes a number of vexatious applications in a single set of proceedings all of which have been dismissed as being totally devoid of merit. Such an order will restrain the litigant from making any further applications in those proceedings without first obtaining the permission of the court. Any application issued without such permission shall stand dismissed without the need for the other party to respond to it.
  5. If a litigant exhibits the hallmarks of persistently vexatious behaviour, a judge of the Court of Appeal or the High Court or a designated civil judge (or his appointed deputy) in the county court should consider whether to make an extended civil restraint order against him. This order, which should be made for a period not exceeding two years, will restrain the litigant from instituting proceedings or making applications in the courts identified in the order in or out of or concerning any matters involving or relating to or touching upon or leading to the proceedings in which it is made without the permission of a judge identified in the order. Any application for permission should be made on paper and will be dealt with on paper.
  6. If an extended civil restraint order is found not to provide the necessary curb on a litigant's vexatious conduct, a judge of the High Court or a designated civil judge (or his deputy) in the county court should consider whether the time has come to make a general civil restraint order against him. Such an order will have the same effect as an extended civil restraint order except that it will cover all proceedings and all applications in the High Court, or in the identified county court, as the case may be. It, too, may be made for a period not exceeding two years.
  7. If a litigant subject to an extended civil restraint order or a general civil restraint order continues to make applications pursuant to the relevant order which are dismissed as being totally devoid of merit, a High Court judge or a designated civil judge (or his deputy) should consider whether it is appropriate to make any subsequent refusals of permission final. Thereafter any subsequent refusal of permission on the grounds that the application is totally devoid of merit will not be susceptible of appeal unless the judge who refuses permission himself grants permission to appeal.
  8. The other party or parties to the litigation may apply for any of these restraint orders, and on such an application the court should make an order that is proportionate to the mischief complained of.

In light of the guidance in Bhamjee v Forsdick, specific provision was made for CROs in CPR 1998 in r3.11 and PD3C.

Although CROs have always been available within family proceedings, it is unclear how widely used a remedy this was. Now, however, for the first time, FPR 2010 brings CROs directly into the procedural code for the family courts and with it a very important remedy.

Procedure
The power to make CROs is now set out at FPR 2010, r4.8 and the accompanying Practice Direction, PD4B. Whilst it is not the intention of this article to repeat the words of PD4B verbatim, it is worth noting the following points:

a) There are three types of CRO- limited CROs, extended CROs and general CROs (these are as set out at points 4, 5 and 6 above respectively of Lord Phillips' guidance in Bhamjee);

b) Limited CROs can be made in both the county court and the High Court, but only a High Court judge (not a DJ) can make an extended or general CRO;

c) There must have been at least two applications made "totally without merit" (and thus there will need to be clear recorded findings to this effect) before a limited CRO can be made (see r4.3(7)(a));

d) Limited CROs last for the life of the proceedings in which they are made, unless the court orders otherwise;

e) Extended and general CROs cannot last longer than two years;

f) CROs effectively work like a shield to further vexatious litigation. So, if the respondent contravenes the CRO by trying to make a further unmeritorious application, it will be automatically dismissed without requiring the judge or other parties to do anything further;

g) A person who is subject to a CRO can apply to discharge or amend the order, but only with permission of a judge identified in the order;

h) It is still possible for a respondent to apply for permission to appeal the CRO.

The court can make a CRO either of its own initiative, or on an application. In fact, FPR 2010 states that the court MUST consider making a CRO when it strikes out a statement of case or dismisses an application (including permission to appeal) and it considers the claim is totally without merit (FPR 2010 r4.3(7) and r30.11(5)). It is worth noting that, whilst CPR 1998 sets this out in almost identical terms, CPR 1998 makes reference to 'the court', whilst FPR 2010 limits CROs made on the court's own initiative to the High Court and county court.

Parties can also apply to the court to make a CRO against another party. To make such an application, one would have to follow the general applications procedure in Part 18, unless the court orders otherwise (FPR 2010, PD4B, paras 5.1-5.2).

Using CROs in family proceedings
CROs have been available as a remedy in family proceedings for some time and so it is therefore somewhat surprising that there are relatively few reported cases that even mention CROs.

What is certainly true is that CROs would not be of much use in Children Act 1989 proceedings, where s.91(14) already provides a similar remedy (PD4B, para1.1 makes this clear). In effect, therefore, this means that the main arena for CROs in the family courts will be ancillary relief (or 'financial remedies' as they are now referred to in FPR 2010).

Currey v Currey (No. 2) [2007] 1 FLR 946 is one example of where a limited CRO was used to good effect (although the case did not turn on the use of CROs per se). In the original ancillary relief proceedings, the wife had been ordered to pay periodical payments at the rate of £48,000 pa, and to make capital provision of £1,070,000, part of which was structured in the form of a £640,000 housing fund for the husband. After a number of years, the housing fund had still not been invested and the husband proceeded to make a number of 'bizarre' applications, 'including claims for damages against the solicitors…representing the wife in the proceedings and claims, purportedly on behalf of the children, for damages against the solicitors who had been representing them'. These claims were struck out by Charles J, who found that the husband had 'persistently issued claims or made applications which were totally without merit'. The CRO made did not preclude the husband from making applications in the present proceedings.

It appears that the purpose of such a CRO was to stop the husband muddying the already muddy waters of litigation, and to stop legal costs spiraling even further out of control (by the time of the appeal, the husband already owed £180,000 to his solicitors).

At this early stage in the life of FPR 2010, one can glean from Currey v Currey (No 2) a potential use of CROs in cases where vexatious applications are being brought to either waste money or, put simply, to make the other party's life more difficult.

Apart from this, over the next few years, we are likely to see more and more litigants in person in the family courts as legal aid in financial remedy cases all but vanishes. This in itself will inevitably slow down the court process. Not only will litigants in person need more time to put their case, but there is also the potential for them to make applications totally without merit, without having had proper legal advice. It is therefore submitted by the author that CROs are a welcome addition to the family procedural code. It is hoped that they will enhance judicial case management powers further at a time when the family courts face a difficult time ahead.