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||Neutral Citation Number:  EWCA Civ 990
||Case No: C1/2004/2418 and C1/2004/2418/B
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Justice Moses
 EWHC 3362 (Admin)
||Royal Courts of Justice
Strand, London, WC2A 2LL
||13 July 2006
B e f o r e :
LORD JUSTICE BROOKE,
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE DYSON
LORD JUSTICE LLOYD
|| THE QUEEN on the Application of
||- and -
||SECRETARY OF STATE FOR CONSTITUTIONAL AFFAIRS
The Appellant appeared in person
Adam Tolley (instructed by the Treasury Solicitor) for the Respondents
Hearing date : 19th June, 2006
HTML VERSION OF JUDGMENT
Crown Copyright ©
| 1. The Background Facts
| 2. Action 1
| 3. Action 2
| 4. Action 3
| 5. Action 4
| 6. Action 5
| 7. Action 6
| 8. Action 7
| 9. The application for permission to appeal
|10. The appeal against the general civil restraint order
|11. Did the CPR confer a power to make a general CRO in this case?
|12. Did the inherent jurisdiction of the court confer such a power?
|13. Was it open to Moses J to make an extended CRO on 8th November 2004?
|14. Should this court make an extended CRO?
|15. Some Concluding Remarks
Lord Justice Brooke : This is the judgment of the court.
1. The Background Facts
- Mr Kumar was born in India in 1967. On 10th September 2002 the British Embassy at Dusseldorf granted him a visa entitling him to pay multiple visits to the UK over a six-month period, so long as he did not work or have recourse to public funds. He flew to Stansted on 13th November 2002 and attended an open day organised by the Legal Practice Course at Staffordshire University. He says he was told that if he enrolled for the course his tuition fee could be paid in seven instalments of £1,000. He has also said that he borrowed money from his brother and his mother to pay the fee, and that he promised he would finish the course in a year. He then returned to Germany.
- On 27th December 2002 he applied at the Embassy for a student visa. He produced a letter dated December 2002 addressed to "Dear New Student" from the Course Director. It appeared to offer the addressee a place on a LLM programme commencing in January 2003. After referring to financial and other requirements, the letter stated that enrolment would take place in the week commencing 13th January, and that the course would start on 20th January. The Embassy was not willing to issue a student visa that day. In due course he was asked to attend an interview on 13th February.
- His application was refused that day on the grounds that the Entry Clearance Officer ("ECO") was not satisfied that he had been accepted for the course of studies he intended to partake in. It appears that the ECO telephoned an identified member of the staff of the university who told him it was now too late to start the course, for which he would need to remain in England for 18 months. He deleted the printed words "Furthermore I am not satisfied that you will be able to meet the costs of your course and accommodation and the maintenance of yourself." Instead he wrote "Applicant argued that he had sufficient. I crossed this out. Refusal reasons". The ECO was later to say in an Explanatory Statement justifying his refusal that Mr Kumar had declined to sign the refusal notification and that he had also refused to leave the waiting room until the ECO had deleted the last sentence of the printed grounds for refusal. He did this simply to get him to leave the office.
- He was told on the form that he was entitled to apply to the appellate authorities, and that if he did so his appeal would be dealt with in England. The papers now before this court do not contain any advice that he must file his notice of appeal at the Embassy, which is the appropriate procedure. Apparently if an ECO is then unwilling to reconsider his decision, he will then prepare a bundle of documents and send them to the Home Office for forwarding to the Immigration Appellate Authority ("IAA"). Mr Kumar says that he contacted the Immigration Advisory Service ("IAS") by telephone or email from Germany and that he could not obtain proper advice from them. He then flew to England on his visitor's visa, which was due to expire on 13th May 2003. He went to the university, and he has produced a letter from the acting student information manager (Student Records) to the effect that he entered on Year One of the full-time one-year Master's programme in the School of Law on 18th February 2003, and that the course would end in July 2004. The letter also stated that the tuition fees for each year of the course were £7,000, and that these had been paid in full. He has said that he also had about 1,000 Euros in a bank account in Germany at this time.
- On 3rd March 2003 he says he could not obtain proper advice about the appeal procedures from the IAS's offices in Birmingham. However, when he visited the Home Office's Public Enquiry Office in Birmingham the same day, he says he was advised to send the appeal notice, together with his passport and other relevant documents, to a division of the Home Office at Croydon. He complained in his grounds of appeal that the ECO had treated the acceptance letter from the law school as a non-acceptance letter, even though he had been accepted for the course. He says the Home Office received his appeal notice and the other documents on 7th March.
- He says that nothing then happened. He telephoned the Home Office on 10th April, and he also wrote to them on 25th April and 15th May with no result. He has produced copies of these letters. On 25th April, for instance, he asked for the return of his passport by recorded delivery. On 15th May he made inquiries by telephone of the IAA's Customer Service Centre at Loughborough, only to be told that they had not received the appeal papers or the explanatory statement from the Home Office. Mr Kumar has said that because he could not get his passport back, he lost contact with his family and was unable to visit them in the summer vacation. They had stopped supporting him because he had stopped studying.
2. Action 1
- On 19th May 2003 he filed a claim form in the District Registry of the High Court at Stoke-on-Trent (SQ303193). I will call this "Action 1". He claimed damages from the Home Office pursuant to s 8(2) of the Human Rights Act 1998 ("the HRA") in relation to the detention of his passport and the Home Office's unwillingness or refusal to process his appeal against the refusal of a student visa. He advanced his claim under Articles 14 (linked with Articles 3, 5, 6 and 10 and Article 2 of the First Protocol) and 8 of the European Convention on Human Rights. He claimed that his passport was being kept under illegal custody despite repeated requests, that he had not received a student visa, and that he could not open a bank account without a passport. The claim form was issued on 20th May.
- On 29th May Mr Kumar made inquiries at the district registry because he had not received a notice of issue of his claim. A court officer wrote down on a piece of paper the words "Claim SQ303113 Date of service 29 May 2003" from the data held on a computer. It is not clear why postal service was delayed for nine days following issue, although a bank holiday weekend did intervene. He then received notice of issue through the post. This referred wrongly to the Stoke-on-Trent County Court as the court of issue. The original computer print-out read:
"Your Claim was issued on 20 May 2003. The court sent it to the defendant by first class post on 23 May 2003 and it will be deemed served on 29 May 2003. The defendant had until 12 June 2003 to reply."
- Nobody seems to have taught the court staff at Stoke-on-Trent about the effect of the decisions of this court in Godwin v Swindon BC  EWCA Civ 1478,  1 WLR 997 and Anderton v Clwyd CC  EWCA Civ 933,  1 WLR 3174, which interpreted the rules as meaning that deemed service occurred two days after postal service, without allowance being made for weekends or bank holidays.
- In fact someone had altered the last three dates on the computer printout in manuscript, so that they now purported to read 29 May, 03 June and 18 June. Mr Kumar was later to accuse the Court Service of impropriety in making these alterations.
- On 6th June the Treasury Solicitor's office wrote to Mr Kumar. The author of the letter, Venetia Jackson, told him that the claim form and particulars of claim were received "at this office" on 6th June. She asked for a 28-day extension of time for serving the defence while the matter was investigated. He did not respond. On 24th June she sent him a similar letter, on this occasion enclosing the Home Office's acknowledgment of service, which was filed with the court on the same day.
- In the meantime he had endeavoured to obtain a default judgment. On 13th June he asked the court to enter a default judgment in his favour in the absence of an acknowledgment of service or a defence. On 16th June District Judge Chapman gave directions, which Mr Kumar says he complied with. He made further such applications on 27th June and 2nd July. On the latter occasion the court directed that his application should be heard on 7th August.
- In the face of Mr Kumar's continuing unwillingness to respond to the requests for an agreed extension of time for filing a defence, on 3rd July the Treasury Solicitor applied to the court for an order that the claim be stayed for three months, alternatively for an extension of time for the defence until 1st August. Complaint was made that Mr Kumar had not sent a letter before action, and that he had not provided any file reference number to facilitate the search for his Home Office file.
- On 11th July this application was listed for hearing on 18th July. On that day Deputy District Judge Anderton granted an extension of time until 29th August, dismissed the application for judgment in default, and vacated the hearing day fixed for 7th August. Although both parties correctly filed their documents in the High Court, all the notices and orders produced by the court referred, quite wrongly, to the Stoke-on-Trent County Court. Mr Kumar says he filed a notice of appeal on 24th July, which the court failed to process.
- It appears that in early August the substance of Mr Kumar's complaint received proper attention for the first time within the Home Office's Immigration and Nationality Directorate ("IND") at Croydon. There is with the papers before this court a note by a caseworker there on 7th August to the effect that it appeared that Mr Kumar was taking out a judicial review against the Home Office as they were keeping his passport. After explaining that he had sent his appeal notice to Croydon, not Dusseldorf, the note continued:
"I have faxed the appeal to Dusseldorf today and explained all the circumstances. Mr Kumar has now got himself into Staffordshire University and is studying law. His leave to enter as a visitor expired on 13/5/03. I have spoken to […] about the case and the possibility of verbal deception the second time Mr Kumar entered the UK in March 2003 while his visitor's leave was running. […] tells me that it is likely that Mr Kumar would be treated as an overstayer and if picked up, the likelihood is he would Judicial Review us or claim Asylum/ Human rights and get bail. There are … no resources to pick up Mr Kumar …"
- Although on the face of the papers before this court Mr Kumar was by this time an illegal overstayer, the Home Office had received his appeal papers on 7th March and had done nothing at all about them. On 11th August, however, IND sent him his passport and told him that his entry clearance appeal had been faxed to the ECO at Dusseldorf. They encouraged him to contact the British Embassy there to request progress on the appeal bundle. [We should record here that when Mr Kumar was sent this judgment on draft, he maintained that the Home Office later accepted that he had been entitled to stay in this country until 17th August 2003].
- On 18th August he applied for an interim relief order under s 8(1) of the HRA, asking the court to issue an entry clearance visa on the grounds that the receipt of his passport proved that it had been kept under the Home Office's illegal custody for ulterior purposes. He observed that the Home Office could have returned his passport to him as soon as they received it if, as they now asserted, he had sent the appeal papers to the wrong place. On 18th August a hearing day of 26th August was set for this application. On 19th August, however, the Home Office applied for a striking out order pursuant to CPR 3.4 (2)(a), (b), and/or (c). Complaint was made of a lack of particularisation in the claim, of the fact that the passport was the property of the Indian state and that Mr Kumar had no proprietary right in his passport, of the fact that any challenge to a decision or lack of decision by the immigration authorities should be by way of judicial review, of the fact that he appeared to be studying in this country without the necessary visa and no cause of action could be based on his own disregard for the immigration legislation, and the fact that in so far as he alleged personal injury he had served no medical report with the claim form.
- On 19th August this application, too, was listed for hearing on 26th August. On that day District Judge Schroeder directed that both applications should be adjourned for hearing by a High Court judge at Birmingham, and in due course a two-hour appointment on 28th November was set for this hearing. On 27th August the court, ineptly, notified the parties that the case was being transferred to the Birmingham County Court, and the notices from Birmingham were wrongly issued in the name of the county court there.
- On 24th November Mr Kumar issued a new application in these proceedings. He was now seeking an interim declaration that there had been severe discrimination by the Home Office and the Stoke-on-Trent court administration. He made a number of complaints which were to feature again in his later litigation. For the present it is sufficient to record that on 28th November 2003 Poole J made an order striking out the claim and "the claimant's cross-application", and ordering Mr Kumar to pay over £4,000 costs. Although this court delivered judgment in Bhamjee v Forsdick  EWCA Civ 1113;  1 WLR 88 in July 2003, Poole J's order did not say that the action was being struck out on the grounds that it was totally without merit, and no transcript of Poole J's judgment has been filed in the present proceedings. We are unable to conclude that he must have formed that view. On 15th December 2004 Mr Kumar posted a notice of appeal to the Civil Appeals Office. This was eventually issued on 22nd June 2004, and in January 2005 Longmore LJ refused permission to appeal following a hearing in court. It is clear from the transcript of his judgment that he regarded the proposed appeal as being totally without merit. After dealing with each argument quite summarily, he ended his judgment by saying that there was no prospect of the Court of Appeal coming to any different conclusion from that of the "trial judge". So much for Action 1.
3. Action 2
- Action 2 started when Mr Kumar filed a claim form (SQ 303485) at the Stoke-on-Trent District Registry on 2nd June 2003. He claimed damages for libel, breach of trust, harassment, injury to feelings and serious non-professional conduct against Ms Mulholland and Mr Salt, who were connected with Staffordshire University. The claim referred to an alleged libel in the Comment notes of the Student Union and in a letter the student adviser of the student union wrote on 21st March. The writ was issued on 6th June and posted on 11th June. It would therefore be "deemed to be served" on 13th June, and the acknowledgment of service had to be filed by 27th June, as indeed it was. A number of Mr Kumar's complaints stem from the fact that he wrongly believed that deemed service took place on 11th June. He therefore applied for judgment in default on 26th June. He made a further such application on 10th July. [When sent a copy of this judgment in draft, Mr Kumar maintained that it was a court officer who told him that the deemed date of service was 11th June, but this fact, if correct, cannot affect the true legal position].
- On 8th July the defendants' solicitors appreciated that they were only instructed by the first defendant, and they filed an amended acknowledgment of service that day. On 9th July District Judge Chapman ordered that the claim be stayed until 29th July and that Mr Kumar serve amended particulars of claim, giving full particulars of the alleged libel, before that date. He also granted the first defendant permission to issue an application notice seeking summary judgment within that time, and gave consequential directions if they did.
- On 10th July the first defendant applied for an order that the claim be struck out and/or summarily dismissed. District Judge Chapman's order was sealed and issued on 11th July, and Mr Kumar has complained that it was wrongly backdated to 9th July. On 16th July he appealed against that order, but on 14th August Judge Fletcher refused permission to appeal. Mr Kumar says that he filed applications for a default judgment on 1st, 3rd, 7th, 10th and 30th July, but the court administration did not direct that judgment be entered, even against the second defendant. On 13th October Deputy District Judge Collier struck out his action against the first defendant with costs. Whatever one's suspicions, there is no evidence before this court that the action was struck out on the grounds that it was totally without merit. Mr Kumar then sought permission to appeal, which was refused.
- In early August 2003 he appears to have prepared a judicial review claim form seeking an order "to issue an entry clearance together with his passport". It is unnecessary to say much about this, because after he had sent the draft papers to Ms Jackson, together with a draft application for an injunction, his passport was returned to him, and these proceedings were never issued.
4. Action 3
- On 21st October 2003 he filed Action 3 at the Administrative Court Office. This was a judicial review claim form (CO/5542/2003) seeking relief against the Lord Chancellor's Department and the Home Office. It contained complaints about the way Actions 1 and 2 had been handled. In particular he sought orders of certiorari to quash the orders made on 10th July and 13th October in the latter proceedings, and a similar order in relation to the order made on 18th July in the former proceedings, orders that the defendants should pay him £50,000 in the former proceedings (in which he claimed that judgment in default should have been issued), and an order for damages under s 8(2) of the HRA in respect of the court administration at Stoke-on-Trent and under s 9(3) in respect of judicial acts.
- In the defendants' acknowledgment of service it was observed that Action 1 was still continuing before a court of competent jurisdiction and that Action 2 had now been struck out. Reference was also made to Mr Kumar's immigration status and his "asylum claim". On 17th September 2003 he had written to IND claiming asylum on the basis of persecution by the British authorities and breach of his human rights. He was later to say that by this time he had become destitute by sustained and systematic violation of basic human rights leading to torture by organs of state.
- The Secretary of State had said that he did not accept asylum claims by letter. In the acknowledgment of service he suggested a pragmatic course of action whereby these matters would be dealt with through the asylum and immigration legislation, with a right of appeal to an adjudicator at the same time as Mr Kumar's appeal against the refusal of entry clearance was heard. He reserved the right, however, to treat the asylum application as a claim for asylum and to "certify" any claims as appropriate.
- Mr Kumar nevertheless pursued this application. Permission to apply for judicial review was refused on the papers by Munby J on 29th December 2003 on the grounds that the application represented an abuse of the process of the court, and by Pitchford J in court on 18th February 2004. Pitchford J clearly treated the application as being totally without merit. He said that this was manifestly not an appropriate case for the exercise of the court's exceptional supervisory jurisdiction over judicial and/or administrative proceedings in the County Court and the High Court. On 17th June 2004 Jacob LJ refused permission to appeal. He, too, clearly regarded the application as being totally without merit. He said he had formed the clear view that there were no prospects whatever of success on any appeal.
4. Action 4
- So much for Action 3. On 16th February 2004 Mr Kumar filed Action 4 at the Administrative Court Office. This was a judicial review claim form (CO/771/2004) seeking relief against "NASS, the Secretary of State for the Home Department" and the Manager, Migrant Helpline at Croydon. He sought judicial review in relation to three incidents connected with his failure to be awarded emergency accommodation in January and February 2004.
- The background to this dispute was that he had filed an application for asylum on 19th December, and was now complaining about mishaps in the provision of accommodation. He alleged, among other things, that in January a false address was knowingly given for him from ulterior motive and bad faith, and that in February the defendants had maliciously refused to comply with their statutory duties.
- On 2nd April solicitors acting on his behalf (with whom he was soon to fall out) applied for an injunction that he be provided with interim accommodation and support. It appears that on 27th March further support had been refused "in purported pursuance of section 55 of the Nationality Immigration and Asylum Act 2002" because the Secretary of State did not consider that his asylum application had been made as soon as reasonably practicable after his arrival. By now he was said to be without any means of support or accommodation other than the limited help referred to on page 145 of the bundle of documents filed by the respondents in this court. Collins J adjourned this application for interim relief from time to time, and ultimately dismissed the application for permission to apply for judicial review on 19th May 2004. He said:
"I found the circumstances of this case extraordinary. The claimant's asylum claim is manifestly ill-founded since he is complaining about his treatment here, not in India, and I am more than surprised that the defendant has not appreciated this long ago and summarily rejected the claim. That apart, the account the claimant gives of the manner in which he managed to live for some ten months is wholly unsatisfactory: he could hardly have lasted that long on 1,000 Euros. He has not in the circumstances persuaded me that in reality he has no access to funds and I see no reason why he should be supported from the public funds."
It appears that Collins J regarded Action 4 as being totally without merit, although he did not say so in terms.
6. Action 5
- On 15th April 2004 Mr Kumar filed the claim form in Action 5 at the Central Office at the Royal Courts of Justice. This was a High Court action in the Queen's Bench Division (HQ04 X01092) in which he claimed damages against the Home Office under s 8(2) of the HRA for not complying with a request he had made to them two months earlier under the Data Protection Act. He also sought an interim order for the provision of personal data held on computer by the Home Office in two matters for which he furnished their file reference numbers. In his Particulars of Claim he said he had sought exemption from the chargeable fee because he was living in emergency accommodation and had no means of paying it. He also referred to two other private law claims he had commenced against the Home Office on 15th and 21st January, of which no other particulars are available.
- On 15th April 2004 he sought an interim order, which was eventually listed for hearing on 8th June. On 30th April the Home Office applied for an order striking out this claim and/or summarily dismissing it on the grounds that the Data Protection Act contained its own procedure for dealing with complaints and in any event he had not paid the prescribed fee. On 8th June Master Tennant dismissed the action with no order as to costs. In a short judgment he did not suggest that the claim was totally without merit. Mr Kumar sought permission to appeal, which was refused on the papers by Simon J on 16th September. He, too, did not suggest that the claim was totally without merit.
7. Action 6
- On 24tH June 2004 Mr Kumar, who was now living in Leicester, filed Action 6 in the local district registry. This was commenced by a CPR Part 8 claim form against the Department for Constitutional Affairs (4LE05206). Mr Kumar was again complaining about certain aspects of the way in which Actions 1 and 2 had been handled at Stoke-on-Trent. In particular, in relation to Action 1 he complained (i) that the date of service of the claim form had been altered twice, from 23rd to 29th May, and from 29th May to 3rd June; (ii) that he had only received notice of a hearing on 18th July two days earlier; (iii) that Deputy District Judge Anderton had conducted a hearing on 18th July in the Stoke-on-Trent County Court which had no jurisdiction in the matter; and (iv) that the court had not processed his appeal against the order made on 18th July.
- In relation to Action 2, I need refer only to his complaints that the court ignored his application for judgment in default, particularly against the second defendant, and that it backdated the order of 10th July in an effort to prove that the order staying the claim had been made before the application for judgment in default was filed.
- On 12th July the defendants filed an acknowledgment of service in which they challenged the appropriateness of the Part 8 procedure. On 15th July Mr Kumar filed an application in which he sought declarations from the district judge to the effect that the orders in Action 1 on 18th July and in Action 2 on 9th July had no legal validity. He contended that the claim raised no substantial issues of fact. He also sought declarations that his human rights had been violated because a default judgment had not been issued in each action, and an order for the payment of damages under s 8(2) of the HRA. This application form was returned to him unissued because he had not paid the appropriate fee.
- On 16th July District Judge Whitehurst directed that the claim should be dealt with under CPR Part 7. He also ordered Mr Kumar to file and serve full Particulars of Claim by 6th August so as to show his cause of action. On 23rd July Mr Kumar sought reconsideration of this order, and/or asked for that order to be determined on considering his application dated 15th July, for which he was exempt from the obligation to pay a fee. On 11th August a hearing date for his application was set for 5th November. Meanwhile, on 16th August the defendants filed an application for an order that the claim be struck out and/or summarily dismissed. They also sought a general Civil Restraint Order ("CRO"), alternatively an extended CRO, and filed a witness statement by Ms Jackson, with copious exhibits, in support of this application.
- On 15th September the court gave notice that the defendants' application would be heard at a three-hour hearing on 19th November. Although District Judge Whitehurst's order was correctly entitled, all the other orders issued in these proceedings were wrongly entitled as issuing out of the Leicester County Court.
- On 23rd September Ms Jackson wrote to the Court Manager at the Leicester County Court acknowledging the notice of hearing. She said that she had earlier suggested that Mr Kumar's pending application (of which she had never received a copy) should be heard at the same time as the defendants' strike-out application. She also sought confirmation that their application be dealt with by a High Court judge, who alone had jurisdiction to make the CRO they were also seeking.
- She did not send a copy of her letter to Mr Kumar, who must have been surprised to receive a "General Form of Judgment or Order" from the court dated 27th September which stated:
"Upon reading a letter from the Treasury Solicitor
IT IS CONFIRMED THAT the hearing on 5th November 2004 be vacated."
- On 27th September a representative of the court's listing section wrote to the defendants enclosing this "order" and stating:
"Also the hearing on 19th November 2004 is to be heard by a District Judge, as it is the application only to be heard. We did refer this matter to the Circuit Judge for confirmation that it was listed correctly."
- On 29th September Mr Kumar wrote a letter to the District Registry in which he asked that the order dated 27th September 2004 be "reconsidered according to Civil Procedure Rules and Principle of Natural Justice and the Rule of Law". He suggested that his own application be listed either before 5th November or at least 14 days before the defendants' application. He received no reply to this letter at all until a representative of the District Judges' section at the court told him by a letter dated 4th November that his letter had been placed before the "District Judge" who directed that "I make no order".
8. Action 7
- On 20th October Mr Kumar commenced the present proceedings ("Action 7"). He filed a Judicial Review Claim Form at the Administrative Court Office challenging the decisions of the court at Leicester on 16th July, 15th September and 27th September. He asked that District Judge Whitehurst's order be quashed and for an award of damages under s 9(3) of the HRA. He also sought by way of interim relief a direction that the order of 27th September be quashed and an injunction preventing the scheduled hearing on 19th November. The papers were placed before Munby J on 22nd October who refused permission to apply for judicial review on the grounds that the proceedings in the Administrative Court constituted an abuse of process. Mr Kumar immediately renewed his application, which was listed for hearing before Moses J on 8th November 2004.
- By their Acknowledgement of Service dated 2nd November 2004 the defendants observed that the decision being challenged had been made in the High Court in the Leicester District Registry and that the Administrative Court therefore had no jurisdiction to consider it. They added that on the basis of this and previous claims they would be applying for an extended CRO at the oral permission hearing on 8th November, and that a draft would be served in advance of that hearing. Mr Kumar says that he did not receive the copy of the Acknowledgement of Service which was sent to him that day by the Treasury Solicitor's office. He did, however, receive on Saturday 6th November a letter from that office which notified him of the application that would be made and enclosed two draft CROs (one of the extended and one of the general variety), a further copy of Ms Jackson's witness statement in the Leicester proceedings, and copies of the relevant procedural rule, practice direction and case law.
- At the hearing on 8th November Mr Kumar produced nine pages of written representations in addition to the two-page skeleton argument he had filed six days earlier. Mr Brian Kenneally of counsel, for his part, produced a seven-page skeleton argument on behalf of the Crown, in which he explained why the Crown was seeking a general or extended CRO. He did not draw Moses J's attention to the fact that the CRO procedure had now been codified in the Civil Procedure Rules for more than a month, nor to the possibility that in Bhamjee v Forsdick the court did not envisage that a general CRO could be made until after an extended CRO had been tried and failed. In other words, he did not cite paras 53 and 54 of that judgment to the judge.
- After a 30-minute hearing Moses J dismissed Mr Kumar's application for permission to apply for judicial review. He said that there was no merit whatever in Mr Kumar's applications. He then went on to set out the reasons why he had decided to grant a general CRO. After summarising briefly the fate of Actions 1 to 5, he said:
"10. Recitation of these cases, does, in my judgment, demonstrate that this applicant persists in vexatious behaviour. The question is whether that behaviour subjects defendants such as the defendant in this case and others to inconvenience, harassment and expense, out of all proportion to any gain likely to accrue to him. The claims which I have identified show that this applicant brings actions or claims at the drop of a hat without any merit whatever. He has no prospect in the claims so far of gaining any benefit out of them and it is plain to me that they are designed no more than to cause harassment, inconvenience and expense to anyone against which they are targeted.
11. I have considered whether it would be sufficient to make an extended CRO, but in my view that is wholly unrealistic. It is plain that the applicant is prepared to use a scattergun approach and fire off claims of any nature whatever against any defendant that he sees within his sights.
12. In those circumstances I am quite satisfied that it is necessary to make a general CRO. I shall make such an order prohibiting Mr Kumar, for a period not exceeding two years, from instituting any proceedings or applications in the High Court or in any county court without permission of either myself or Collins J."
9. The application for permission to appeal
- Mr Kumar sought permission to appeal. On 19th May 2005 Brooke LJ granted him permission to appeal against the CRO, but refused permission to appeal on other grounds, saying that the proposed appeal was totally without merit. Mr Kumar asked that these grounds be reconsidered by the court hearing the appeal. On 19th June 2006, after hearing argument, we told him that we were refusing permission to appeal for reasons we would set out in writing later.
- Mr Kumar was arguing that Moses J should not have refused permission to apply for judicial review. What he was seeking to challenge in these proceedings, however, was a judicial decision of a district judge sitting in a District Registry of the High Court, and the actions, or inactions, of the listing staff at that district registry who act under the direction of the judiciary in listing matters. The Administrative Court, which is part of the High Court, exercises supervisory jurisdiction over lower courts and tribunals in appropriate cases, but it has no jurisdiction at all over the High Court itself. On the evidence before this court Mr Kumar appears to have received poor service from the staff of the district registry, but there was nothing in his complaints that a short, polite letter addressed to the local court manager should not have been able to put right. Moses J was therefore right to refuse permission, and the proposed appeal against that part of his order is totally without merit.
10. The appeal against the general civil restraint order
- We turn now to the appeal against the CRO. Although he was instructed by the respondent, Mr Tolley's submissions proceeded as if he had been asked to act as an advocate to the court, given the wider significance of the appeal and the fact that Mr Kumar was acting in person. This appeal raises the following main issues:
i) Did Moses J have power to grant a general CRO under the Civil Procedure Rules?
ii) If "no", did the inherent jurisdiction of the court give him such a power notwithstanding the existence of a comprehensive CPR regime for making CROs?
iii) If the answer to both questions is "no", would it have been open to him to grant an extended CRO on the evidence before him, and should this court substitute such an order on this appeal pursuant to its powers under CPR 52.10 (1) and (2)(a)?
iv) If the answer to all these questions is "no", should this court grant an extended CRO on the evidence before us?
In answering these questions we have to consider a number of matters of general interest and importance in relation to the exercise of this comparatively new jurisdiction.
11. Did the CPR confer a power to make a general CRO in this case?
- The answer to Question (i) is quite simple. The Civil Procedure Rules Committee acted on the suggestion made by this court in Bhamjee v Forsdick at , and a CRO regime was introduced into the CPR for the first time with effect from 1st October 2004. A new rule in CPR 3.11 enabled all the aspects of the new rule-based regime to be set out in a practice direction, and in its original form para 4.1 of Practice Direction C to CPR Part 3 provided, so far as is relevant, that:
"4.1 A general CRO may be made by –
(2) a judge of the High Court,
where, despite the existence of an extended civil restraint order, the party against whom the order is made persists in issuing claims or making applications which are totally without merit."
- No extended CRO had ever been made against Mr Kumar at the time of the hearing on 8th November 2004. Moses J therefore had no power to make a general CRO under the CPR in those circumstances. As I have said, counsel did not draw his attention to the existence of the new rule-based regime.
12. Did the inherent jurisdiction of the court confer such a power?
- So far as Question (ii) is concerned, the new rule reproduced faithfully the effect of the judgment of this court in Bhamjee v Forsdick. It was the purpose of the court in that case to enlarge the armoury of protective powers that already existed and to arrange them in a coherent structure.
- Thus the new CROs reproduced the former Grepe v Loam orders, whereby a court could restrain a litigant from issuing fresh applications without the leave of the court within the four corners of a single action (see Grepe v Loam (1887) 37 Ch D 168).
- In Ebert v Venvil  Ch 484 the court made it clear, however, that it had power to impose such a restraint beyond the four corners of a single action so long as the litigant was seeking to re-litigate issues that had been canvassed in the original action. The limits of the new restraint were set out on the face of what became known as an "extended Grepe v Loam order". A short summary of this jurisdiction is to be found in Bhamjee v Forsdick at -. In para 36 of that judgment the court made a survey of the three techniques which were then available to a court concerned with actions or applications which were utterly without merit (viz a strike-out order of the court's own initiative; a Grepe v Loam order; and an extended Grepe v Loam order). It ended this survey by saying:
"If all these steps prove to be of no avail, then resort has to be made to the more severe restraints embodied in a section 42 order."
- In paras 39-40 the court sought to clarify the circumstances in which a Grepe v Loam order (now renamed a CRO) might be made:
"39...A CRO is likely to be appropriate when the litigant's conduct has the hallmark of one who is content to indulge in a course of conduct which evidences an obsessive resort to litigation and a disregard of the need to have reasonable grounds for making an application to the court. Normally we would not expect a CRO to be made until after the litigant has made a number of applications in a single set of proceedings all of which have been dismissed because they were totally devoid of merit."
This jurisdiction was codified in section 2 of the new practice direction which now described this type of order as "a limited CRO."
- In paras 41-42 of the Bhamjee judgment the court set out the requirements for an extended Grepe v Loam order (now called an "extended CRO"). This jurisdiction was codified in section 3 of the new practice direction.
- In paras 43 and 44 of the Bhamjee judgment the court went on to say:
"43. The court's experience now shows that an even wider form of order may be necessary for a particularly rare type of litigant. A CRO and an extended CRO can only restrain the litigant in the context of the litigation he is currently conducting and other litigation to like effect....
44. It is now clear that it may be necessary, because a litigant's vexatious activities are proving to be such a drain on the resources of a court, for a judge to make an order restraining him from commencing any action or making any application in that court without the prior permission of the court...."
- In that part of the judgment it was not explained in terms that a general CRO may not be made unless an extended CRO has failed to quench the litigant's ardour for litigation. This is, however, made crystal clear in para 53(6), where the court's new guidance is being summarised:
"(6) If an extended CRO is found not to provide the necessary curb on a litigant's vexatious conduct, a High Court judge...should consider whether the time has come to make a general CRO against him."
In para 54 the court went on to say that
"[W]e consider that the two-year CROs of the type we have described in this judgment represent the kind of step by step process approved by Strasbourg jurisprudence..."
In other words, it was not at that time envisaging that a general CRO might be made at the very start of the court's restraining process.
- It should be noted that during the year that followed the decision in Bhamjee and preceded the introduction of CPR 3.11 this court extended the jurisdiction of a High Court judge so that he/she might now make a general CRO which would restrain the litigant's activities in any county court as well. In Mahajan v DCA  EWCA Civ 946 Brooke LJ, with whom Dyson LJ agreed, said:
"In my judgment, there is no reason to limit the jurisdiction of the High Court in the way we suggested in the judgment in Bhamjee. If a judge of the High Court is satisfied that the nuisance to be enjoined is extreme enough, it would be absurd if he could only make a general restraint order in the High Court, and had to leave it to individual designated civil judges in the county court up and down the country to make similar orders, if they shared his view as to the nature of the nuisance."
- It was for similar reasons that following the first year's experience of the working of the new rule-based regime an amendment to para 4 of Practice Direction C to CPR Part 3 was made, so that since 1st October 2005 there has been a power to make a general CRO:
"where the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended CRO would not be sufficient or appropriate."
- This new language is apt to cover a situation in which one of these litigants adopts a scattergun approach to litigation on a number of different grievances without necessarily exhibiting such an obsessive approach to a single topic that an extended CRO can appropriately be made against him/her.
- Mr Tolley invited us to consider whether Moses J might have had power to impose a general CRO in the inherent jurisdiction of the court, notwithstanding the existence of the new rule-based jurisdiction. In this context he drew our attention very helpfully to the judgment of Megaw LJ in Moore v Assignment Courier Ltd  1 WLR 638, in which he said at pp 645H – 646A:
"What matters here, as I see it, is that, Parliament having given to the Rule Committee the specific power to make rules in relation to interim payments, there would have been power in the Rule Committee to make a rule that would, or might, have governed the matter in respect of which [counsel] invites us to assume that we have inherent jurisdiction. The very fact that that power has thus been expressly given to the Rule Committee indicates, to my mind, that, without action by the Rule Committee, this court does not have such a power. The only exercise of that power hitherto by the Rule Committee, so far as we have been told, is the provision to which Sir John Pennycuick has referred, the new provisions of Ord. 29, r. 9, which are confined to cases of personal injury claims and claims in respect of death. It accordingly has no operation here."
- That case, however, was not concerned with the court's inherent jurisdiction to protect its process from abuse, but with the exercise of a new statutory power conferred on the Supreme Court Rule Committee to introduce a regime for interim payment orders. The court's inherent jurisdiction to protect its process from abuse, however, has always existed, and has been preserved side by side with the powers conferred on it by the Rules, but it would be a very rare case in which a judge could rely on the inherent jurisdiction in an area which appeared to have been comprehensively covered in the rules.
- All it is necessary to say on the present occasion is that it would have been quite inappropriate for Moses J to rely on a power not identified by this court in Bhamjee or Mahajan and not contained in the detailed new rule-based regime that had so recently been introduced. So long as the matter was dealt with fairly – a matter to which we will now turn – he had ample power to deal with the nuisance that Mr Kumar represented.
13. Was it open to Moses J to make an extended CRO on 8th November 2004?
- The third question we identified was whether it would have been open to Moses J to grant an extended CRO on the evidence before him. In answering this question we must address the following issues:
i) Was the jurisdiction available to a judge of the Administrative Court in November 2004 when dismissing an application for permission to apply for judicial review under CPR Part 54?
ii) In the exercise of this jurisdiction, was (and is) it open to a court to consider of its own motion whether a judge on an earlier occasion must have rejected an application or dismissed an action as being "totally without merit", or was (and is) its consideration limited to those cases in which these words appear on the face of the court's order?
iii) Did the procedure that led up to the making of a CRO on 8th November 2004 comply with the requirements of the Civil Procedure Rules, and/or was it unfair?
- Issue (i) is quite simple. Power to make a CRO forms part of a civil court's case management powers, which are just as readily available to a judge in the Administrative Court hearing applications under CPR Part 54 as they are to a judge in private law litigation or a judge in the Court of Appeal. Thus, where CPR 3.4 gives a court power to strike out a statement of case (a term which includes a claim form or particulars of claim where these are not included in a claim form: see CPR 2.3(1)), this power embraces the power to strike out a claim form initiating the judicial review procedure, since this is simply a modified form of the CPR Part 8 procedure (see CPR 54.1 (2)(e)). This was the reason why Brooke LJ encouraged judges of the Administrative Court to be willing to strike out such claims of their own initiative pursuant to CPR 3.3(4) in R (on the application of Nine Nepalese Asylum Seekers) v SSHD  EWCA Civ 1182 at . It follows that the suggestion made by Collins J in R (Miles) v DCA  EWHC 744 (Admin) at  to the effect that the rules did not deal with applications under Part 54 was incorrect. In any event, the position has now been put beyond doubt by amendments to CPR 3.3(7) and CPR 23.12 that came into force with effect from 1st October 2005.
- In Miles Collins J also suggested that if an order in an earlier case did not include an indication that the relevant application or claim was totally without merit, it must not be taken into account when the CRO jurisdiction was invoked. He adopted this approach because para 1 of Practice Direction C to CPR Part 3 states that
"Rules 3.3(7), 3.4(6) and 23.12 provides that where a statement of case or application is struck out or dismissed and is totally without merit the court order must specify that fact..."
He went on to say (at para 39):
"It seems to me that it is important, and indeed necessary, that in deciding whether or not to make such an order the court should follow the correct procedure. These are orders which restrain litigants from doing what otherwise they would be entitled to do and it is important, and has always been regarded as important, in connection with vexatious litigants that the proper procedure is complied with."
- What Collins J had in mind in this context was the accident of history whereby for a very short period a Divisional Court had no jurisdiction to hear applications made under section 42 of the Supreme Court Act 1981 because no rule of court had yet been introduced to nullify the effect of s 19(3) of that Act. In Re Fletcher (1984) The Times June 12 this court held that an order of a Divisional Court in such a case was therefore made without jurisdiction. The present situation is in our judgment very different. It is of course correct that para 1 of Practice Direction C imposes an obligation on courts to ensure that their orders record that a statement of case or application was totally without merit, but the absence of this mantra on the face of an order does not oblige a later court, when convinced that a statement of case or application must have been treated as being totally without merit, to correct the earlier order under the slip rule or to send it back to the original court for correction under that rule. This would be to elevate form over substance in a very undesirable way.
- But if the earlier order does not speak for itself, a rather more detailed examination of the earlier litigation history must be undertaken than is evident in Moses J's judgment in this case if a court is to be satisfied that it possesses the requisite jurisdiction. For a limited CRO the party to be restrained must have made two or more applications which were totally without merit (Practice Direction C, para 2.1). For an extended CRO he/she must have persistently issued claims or made applications which were totally without merit. In Bhamjee this court explained the meaning of persistence in this context at para 42:
"By the time the order comes to be made the litigant for whom the further restraint has been adjudged necessary will have exhibited not only the hallmarks of vexatiousness...but also the hallmarks of persistent vexatiousness...We do not include the word 'habitual' among the necessary criteria for an extended CRO, but there has to be an element of persistence in the irrational refusal to take 'no' for an answer before an order of this type can be made."
- Under the new rule-based regime, however, it is sufficient that the previous claims or applications were totally without merit, and that the litigant persisted in making them. The requirement for "vexatiousness", or its modern equivalent, has gone.
- We turn back, therefore, to our analysis of the previous litigation.
i) Action 1 was triggered off by what appears to have been a legitimate grievance about the Home Office's retention of the appeal papers and Mr Kumar's passport without processing the matter in any way at all, and its failure to respond to his letters when he inquired into the position. We do not find it possible to say that Poole J found that the action was totally without merit (see para 19 above). The transcript of Longmore LJ's judgment was not before Moses J, as it was before us, and it was therefore not open to him to form any opinion as to Longmore LJ's view on the merits of the proposed appeal (see also para 19).
ii) We do not know enough about Action 2 to determine whether it was regarded as being totally without merit, whatever our suspicions (see para 22 above).
iii) Action 3 could legitimately be regarded as totally without merit, and it included three applications, to Munby J, to Pitchford J, and to Jacob LJ, which Moses J would have been entitled to identify as having those characteristics (see para 27 above).
iv) Action 4 could have been regarded as having the same characteristics, in the light of the robust language used by Collins J when he dismissed it (see para 30 above).
v) Action 5 does not appear to have the requisite characteristics. Mr Kumar was asserting that he should not be prevented by his impecuniosity from obtaining access to the information about his case that was held on Home Office computers, and although his action was struck out there is no evidence that either it, or the proposed appeal, was being treated as being totally without merit (see para 32 above).
vi) There was sufficient evidence about Action 6, in which Mr Kumar sought to relitigate matters that could have been disposed of by judicial decision in Actions 1 and 2, for Moses J to be entitled to conclude that it was totally without merit (see paras 33 and 34 above).
vii) Moses J was also entitled to treat the application to Munby J, as well as the application to him, as being totally without merit (see para 45 above).
- There was therefore ample material before Moses J to justify the making of an extended civil restraint order. However, we are satisfied that it would have been wrong to make such an order on 8th November against the background of this complicated history without adjourning the matter. Mr Kumar was entitled to have time to prepare his defence to the application on proper notice. The defendants never filed any application for a civil restraint order with the Administrative Court, and Mr Kumar certainly did not obtain the three days' clear notice required by CPR 23.7.
- While it is true that he received Ms Jackson's evidence when the defendants were seeking a similar order in Action 6 (see para 36 above), he did not have any inkling that he had to resist such an order in Action 7 until he received a large bundle of documents on the Saturday before the Monday hearing, and he did not have the opportunity to pre-read Mr Kenneally's skeleton argument before he arrived in court on the Monday (see paras 42 and 43 above). In the written representations he placed before the court on the Monday Mr Kumar said (in para 2):
"The Claimant is entitled to have notice of hearing of any application by their opposing party...at least 3 clear days under mandatory procedural Rules 3.3(3)(a)(b), 2.8(4)(b) of the CPR."
- Although the reference to CPR 3.3(3) was inapt, this represented an objection by Mr Kumar to the court hearing the defendants' application on no notice at all (because the Saturday and Sunday did not count: see CPR 2.8(4)(b)(i)), and in the circumstances, after determining the renewed application for permission to apply for judicial review, the judge should have adjourned the hearing of the application for a civil restraint order to a date which would have afforded Mr Kumar time to prepare his defence and to consider the effect of the new CRO provisions in the Rules.
- It follows that he was wrong to make the order when he did. He should have adjourned the hearing of the defendants' application. Needless to say, he would have been entitled on his own initiative, if he thought the situation really warranted it, to make an interim order pursuant to his powers in CPR 3.3(4), which Mr Kumar would be entitled pursuant to CPR 3.3(5) to apply to set aside.
- This is not to say that under the new rule-based procedure a court must always adjourn the consideration of a civil restraint order pursuant to the duty now imposed on it whenever it strikes out or dismisses a statement of case as being totally without merit. If the facts are clear and simple enough it may be appropriate for the court to proceed to make the order immediately. But the history of the previous litigation in the present case was quite complicated, and Mr Kumar was entitled to have more time in which to prepare his resistance.
14. Should this court make an extended CRO?
- The situation in this court is quite different. We have seen the transcript of Longmore LJ's judgment in Action 1, and Mr Kumar has now made, and renewed, an application for permission to appeal against Moses J's dismissal of his judicial review application in Action 7 which has twice been found to be totally without merit. Although Mr Kumar complained that he had not had sight of Mr Tolley's long skeleton argument before he arrived in court, we are satisfied that it was posted to him in good time at his "address for service" in Edinburgh, which he had not visited since the middle of the week before the hearing of the appeal. We permitted him a 30-minute adjournment to allow him to read it, and we then asked Mr Tolley to address us first before inviting Mr Kumar to respond. In these circumstances we were satisfied that it was fair to proceed without adjourning this long delayed appeal to another day.
- We will therefore make an extended civil restraint order, effective for a period of two years, against Mr Kumar which will restrain him from issuing claims or making applications in the Court of Appeal, the High Court, or any county court concerning any matter involving or relating to or touching upon or leading to the proceedings in which our order is made without first obtaining the permission of Mr Justice Collins or any other judge nominated for this purpose by the judge in charge of the Queen's Bench jury and non-jury lists.
15. Some Concluding Remarks
- Although Mr Kumar ought to have adopted different ways of airing his grievances, so long as an indigent litigant in person is allowed to initiate court process without paying any fees at all, he/she is entitled to the same quality of a service as any other litigant. Paragraphs 8-9, 14, 18, 37, 39 and 41 of this judgment appear to evidence deficiencies in the quality of service he received from staff at the Stoke-on-Trent and Leicester District Registries which deserve careful attention by the appropriate authorities. We were particularly surprised to see that all the notices and orders issued from both these district registries of the High Court wrongly bore the name of the local county court as the originating court, apart from the order District Judge Whitehurst made on a special judicial template. Unless and until we have a unified civil court in this country, notices and orders issued out of a District Registry of the High Court must be suitably entitled.
- On an allied matter, if this new civil restraint order regime is to operate smoothly, court staff and judges must be careful to ensure that if an application or statement of case is regarded as being totally without merit, the order of the court must record that fact, as is required by para 1 of Practice Direction C to CPR Part 3. If this is not done, wholly avoidable expense may have to be incurred in disinterring and examining the evidence of past litigation in the manner exemplified by our judgment in this case. If this has to be done, then the transcripts of the judgments in those cases will provide the best evidence of the view adopted by the relevant judge, if they are available. Transcripts of all judgments in the Court of Appeal are held at the Civil Appeals Office, and the staff of that office should be consulted if such a transcript is needed.
- Finally, in Action 6 the defendants applied in the District Registry of the High Court at Leicester for an extended civil restraint order. Such an order can only be made by a High Court judge, and the staff of the district registry should have taken appropriate steps to arrange the necessary hearing. It was quite wrong for this application to be treated in the way we have set out in paras 37 and 39 of this judgment. We would like to think that in future arrangements could be made for an application of this kind to be made to a High Court judge in London, if necessary by video link, if a High Court judge is not likely to be available in the locality of that district registry for some time. At all events it simply is not open to the staff of a district registry to ignore the fact that such an application has been made, as occurred on this occasion.
- For the reasons given in this judgment, we therefore dismiss the remainder of Mr Kumar's application for permission to appeal, but we allow his appeal against the general civil restraint order made on 8th November 2004. We substitute for it the extended civil restraint order we have set out in para 77 above.
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