Case Nos: HC-2016-002827, HC-2017-000537

Neutral Citation Number: [2017] EWHC 3231 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Rolls Building
Fetter Lane, London, EC4A 1NLL

Date: 13 December 2017

Before :

MR JUSTICE ARNOLD

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Between :

	MAX COUPER	Claimant	
	- and -		
	(1)	IRWIN MITCHELL LLP
(2)	IRWIN MITCHELL
(3)	LORD THOMAS OF GRESFORD OBE QC	Defendants	

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Andrew Burr of Synthesis Chambers Solicitors for the Claimant
Amanda Savage (instructed by DAC Beachcroft LLP) for the Third Defendant

Hearing date: 6 December 2017

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Judgment
MR JUSTICE ARNOLD : 
Introduction
1.	On 8 October 2013 I handed down judgment in case HC06C04432 (subsequently re-numbered HC-2006-000001, “the Main Claim”) ([2013] EWHC 2993 (Ch), “the Main Judgment”) following a three-week trial in June and July 2013. For the reasons given in the Main Judgment, I dismissed all the claims made by the claimants, Max Couper and the Trustees of the Couper Collection Charitable Trust, and held that the first and second defendants, Albion Properties Ltd and the Port of London Authority, were entitled to the declarations sought by their respective counterclaims.
2.	On 16 January 2017 I handed down a further judgment in the same case ([2017] EWHC 22 (Ch), “the ECRO Judgment”) following a hearing on 14 December 2016. By the time of that hearing, three applications by Mr Couper (and three applications by his wife Magdalena Couper) had been dismissed as being totally without merit. For the reasons given in the ECRO Judgment, I dismissed five further applications by Mr Couper as being totally without merit and made an extended civil restraint order against Mr Couper (“the ECRO”) and a similar order against Mrs Couper. 
3.	On 27 February 2017 - that is to say, after the ECRO had been made - Mr Couper issued the claim form in case HC-2017-000537 against Lord Thomas of Gresford OBE QC, who was leading counsel for the claimants at the trial of the Main Claim, claiming damages for alleged professional negligence in the preparation and conduct of the case. Mr Couper had not sought or obtained permission to issue the claim from either of the judges named in the ECRO prior to doing so.
4.	On 9 November 2017 Lord Thomas applied for a declaration that Mr Couper’s claim against him had been automatically struck out pursuant to Practice Direction 3C paragraph 3.3(1) as a consequence of Mr Couper’s failure to obtain prior permission to issue it.
5.	Mr Couper contends that his claim against Lord Thomas is not within the scope of the ECRO. In the alternative, he seeks relief from the sanction imposed by Practice Direction 3C paragraph 3.3(1) pursuant to CPR rule 3.9. In the further alternative, he seeks permission to bring a fresh claim against Lord Thomas.
Practice Direction 3C
6.	Practice Direction 3C makes provision for the grant of limited civil restraint orders, extended civil restraint orders and general civil restraint orders. It includes the following provisions concerning extended civil restraint orders:
“3.1 	An extended civil restraint order may be made by –
…
(2) 	a judge of the High Court; 
…
	where a party has persistently issued claims or made applications which are totally without merit.
3.2 	Unless the court otherwise orders, where the court makes an extended civil restraint order, the party against whom the order is made –
(1) 	will be restrained from issuing claims or making applications in –
…
(b) 	the High Court or the County Court if the order has been made by a judge of the High Court; 
…
concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of a judge identified in the order;
(2) 	may apply for amendment or discharge of the order provided he has first obtained the permission of a judge identified in the order; 
…
3.3 	Where a party who is subject to an extended civil restraint order –
(1) 	issues a claim or makes an application in a court identified in the order concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of a judge identified in the order, the claim or application will automatically be struck out or dismissed –
(a) 	without the judge having to make any further order; and
(b) 	without the need for the other party to respond to it;
…
3.4 	A party who is subject to an extended civil restraint order may not make an application for permission under paragraphs 3.2(1) or 3.2(2) without first serving notice of the application on the other party in accordance with paragraph 3.5.
3.5 	A notice under paragraph 3.4 must –
(1) 	set out the nature and grounds of the application; and
(2) 	provide the other party with at least 7 days within which to respond.
3.6 	An application for permission under paragraphs 3.2(1) or 3.2(2) –
(1) 	must be made in writing;
(2) 	must include the other party’s written response, if any, to the notice served under paragraph 3.4; and
(3) 	will be determined without a hearing.”
The ECRO
7.	The ECRO provides:
“It is ordered that you be restrained from issuing claims or making applications in any court specified below concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of Mr Justice Arnold or if unavailable Mr Justice Hildyard.”
The courts specified below are the Court of Appeal, the High Court, the County Court, “any county court” and “any court or tribunal”.
8.	The ECRO also provides at numbered paragraph 1:
“If you wish to apply for permission-
(a)	to make an application in these proceedings; OR
(b)	to make an application to amend or discharge this order,
you must serve notice of your application on the other party. The notice must set out the nature and grounds of the application and provide the other party with at least 7 days within which to respond. … The application for permission must be made in writing and must include the other party’s written response, if any …”
Procedural background
9.	On 25 September 2016 the Bar Mutual Indemnity Fund agreed, on behalf of Lord Thomas, to a standstill for limitation purposes in respect of a claim by Mr Couper against Lord Thomas for professional negligence. This agreement did not expire until the end of February 2017. 
10.	On 5 October 2016 Mr Couper issued the claim form in case HC-2016-002827 against Irwin Mitchell LLP and its predecessor partnership Irwin Mitchell (collectively “Irwin Mitchell”), who were the solicitors acting for him in the Main Claim, seeking damages for alleged professional negligence in the preparation and conduct of the case. Mr Couper has stated in a witness statement in opposition to the present application that he issued that claim form when he did because Irwin Mitchell declined to enter into a standstill agreement. Mr Couper served the claim form on Irwin Mitchell under cover of letters dated 27 January 2017 with effect on 30 January 2017.
11.	On 8 February 2017 Mr Couper wrote to Hildyard J saying that he wished to apply for (i) an extension of time for service of Particulars of Claim and (ii) a stay of proceedings in his claim against Irwin Mitchell, and that he did not think that the ECRO was intended to prevent him for making an application in those proceedings, but out of an abundance of caution he was bringing his proposed application to Hildyard J’s attention. He enclosed drafts of his application notice, witness statement in support and the order sought, and said that he had provided copies of the draft application notice and order to Irwin Mitchell on 27 January 2017.
12.	Mr Couper’s letter was passed to me, and on 10 February 2017 I made an Order in the Main Claim in the following terms:
“If and in so far as the First Claimant requires permission pursuant to the Extended Civil Restraint Order dated 16 January 2017 to bring an application in Claim HC-2016-002827 for (i) an extension of time to serve of Particulars of Claim and (ii) a stay of proceedings, the First Claimant is granted such permission.”
13.	Two points should be noted about this order. First, Mr Couper did not seek, and the order did not grant him, permission to issue the claim form in HC-2016-002827. No such permission was required, because the claim form had been issued prior to the making of the ECRO. What Mr Couper sought was permission, if required, to make the two specified applications. It can be seen from the way in which the order was framed that I did not make any determination as to whether permission was required. Rather, I granted permission if it was required. I did not give any reason for making the order, but my reason was that, assuming that the proposed applications were within the scope of the ECRO, the applications did not appear to me to be totally without merit. 
14.	Secondly, it has been pointed out that I did not seek or receive any representations from Irwin Mitchell before making the order. To the best of my recollection, I did not seek any representations because I considered the application to be a matter between Mr Couper and the Court. Whether that reason was sound or not, it seems to me that it would have been open to Irwin Mitchell to apply to set the order aside if aggrieved by it.
15.	On 13 February 2017 Mr Couper duly issued his applications in case HC-2016-002827, which were listed for hearing on 20 March 2017. On 13 March 2017 Irwin Mitchell issued an application which was listed for hearing on the same occasion. On 20 March 2017 Deputy Master Arkush made an order which, among other things, extended Mr Couper’s time for service of his Particulars of Claim until 31 July 2017.
16.	On 28 March 2017 Mr Couper served the claim form in case HC-2017-000537 on Lord Thomas’ solicitors. In their letter acknowledging service, Lord Thomas’ solicitors offered Mr Couper an extension of time for service of his Particulars of Claim until 9 May 2017.
17.	On 19 May 2017 Deputy Master Lloyd made an order by consent of all three parties consolidating cases HC-2016-002827 and HC-2017-000537 and extending Mr Couper’s time for service of Particulars of Claim in the consolidated action until 31 July 2017. So far as I have been able to ascertain, this order did not result from any formal application by any of the parties. Rather, Irwin Mitchell’s solicitors wrote to the Court to inform it of the parties’ agreement to the proposed order and requesting that the order be made. Since Irwin Mitchell’s solicitors paid the requisite fees, however, it seems to me that Irwin Mitchell should be regarded as the party making the application.
18.	Mr Couper duly served his Particulars of Claim, together with a Schedule of Loss and Damage, on 31 July 2017, although he has served several “revised” versions since then.
19.	On 9 August 2017 Master Price made an order by consent extending the time for service of the Defences until 15 November 2017. Again, so far as I have been able to ascertain, this order did not result from any formal application by any of the parties. It appears that Irwin Mitchell’s solicitors again wrote to the Court to inform it of the parties’ agreement to the proposed order and requesting that the order be made, but it is not clear who paid the fee (if anyone did). In substance, however, it seems to me that the application was made jointly by Irwin Mitchell and Lord Thomas. 
20.	Ross Risby of Lord Thomas’ solicitors has explained in a witness statement in support of the present application that he was aware from February 2017 that an extended civil restraint order had been made against Mr Couper, but he was not aware of the scope of the order at that time. It was only when considering the position with counsel during preparation of Lord Thomas’ Defence that his firm obtained copies of the ECRO (and of the ECRO judgment) and appreciated its scope.  
21.	On 9 November 2017 Lord Thomas’ solicitors issued and served the application notice that is presently before the Court. The application notice requested that an order be made by the Master without a hearing. Master Price referred the application to me. On 14 November 2017 I made an order directing that the application be listed for hearing before me and extending the Defendants’ time for service of their Defences until 21 days after the determination of the application. I did not seek representations from Mr Couper before making that order, but he could have applied to set it aside if aggrieved by it.   
22.	Nevertheless, on 15 November 2017 Irwin Mitchell served their Defence.                 
Is Mr Couper’s claim against Lord Thomas within the scope of the ECRO?
23.	Counsel for Lord Thomas submitted that Mr Couper’s claim against Lord Thomas was plainly caught by the ECRO since it concerned a matter involving or relating to or touching upon the Main Claim: Mr Couper’s case is that, but for Lord Thomas’ negligence, he would have succeeded on at least his principal claims in the Main Claim. The damages claimed include damages for the loss of the barges which were central to the litigation.
24.	Counsel for Mr Couper made three submissions. The first was that the ECRO only extended to making applications in the Main Claim in any of the specified courts. This is obviously wrong, because that is the effect of a limited civil restraint order, whereas an extended civil restraint order is so called precisely because it extends beyond the original proceedings. Thus the ECRO prevents Mr Couper from issuing claims, and not merely making applications, concerning any matter involving or relating to or touching upon or leading to the Main Claim. 
25.	Secondly, and more significantly, counsel for Mr Couper submitted that the ECRO only caught claims and applications against the defendants to the Main Claim. In support of this submission, he relied upon the terms of Practice Direction 3C paragraphs 3.4, 3.5 and 3.6, and upon numbered paragraph 1 of the ECRO. I agree that the requirements in the Practice Direction and numbered paragraph 1 of the ECRO for notice to be served on “the other party” and for any response from that party to be included in an application for permission suggests that the ECRO is primarily intended to catch claims and applications against the defendants to the Main Claim. Nevertheless, the operative words of the ECRO are not limited to claims or applications against the same defendants. Moreover, I consider that there is good reason not to interpret the ECRO as being restricted to claims or applications against the same defendants. The purpose of an extended civil restraint order is to prevent harassment of defendants, and waste of court resources, by the issuing of claims, or the making of applications, which are totally without merit. It would be far too easy for claimants and applicants to defeat that purpose if an extended civil restraint order were limited to claims or applications against the same defendants. An obvious example of this is that such an interpretation would permit claims to be issued or applications made against the directors of a company if the company had been the only defendant in the proceedings in which the order was made. In the present case, the fact that the claim is not directed against the defendants to the Main Claim does not mean that it has no effect on them. On the contrary, there is an obvious risk that representatives of the defendants may be called as witnesses and/or that disclosure will be sought from them. Nor does it mean that court resources would not be wasted if the claim was totally without merit.
26.	Thirdly, counsel for Mr Couper submitted that Lord Thomas had waived, or was estopped from complaining about, any breach of the ECRO because of the steps that Lord Thomas had taken after service of the claim, in particular with respect to the orders dated 19 May 2017 and 9 August 2017. The order dated 19 May 2017 was not made as a result of any step taken by Lord Thomas, however. As for Lord Thomas’ informal application for an extension of time for service of his Defence, which led to the order dated 9 August 2017, that did not give rise to any waiver or estoppel for the following reasons. First, as is common ground, if Mr Couper’s claim against Lord Thomas was within the scope of the ECRO, then it was automatically struck out as soon as it was issued by virtue of Practice Direction 3C paragraph 3.3(1) due to Mr Couper’s failure to obtain advance permission from one of the named judges. That cannot be affected by any step taken subsequently by Lord Thomas. Secondly, the step taken by Lord Thomas cannot amount to a waiver of any right he had. The present situation may be compared to submission to the jurisdiction of a court, which can occur as a result of the taking of steps in the substantive proceedings. In those circumstances, the party taking such steps may be found to have waived their right to challenge the court’s jurisdiction. By contrast, the ECRO is an injunction imposed primarily for the protection of the defendants to the Main Claim and of the courts’ resources. The taking of a step by Lord Thomas in the proceedings cannot detract from that. Thirdly, Lord Thomas made no representation which could give rise to an estoppel, particularly given the evidence that his solicitors were not aware of the terms of the ECRO at the time. Still less has Mr Couper relied upon any such representation to his detriment. It was suggested that he had done so by supplying documents to Lord Thomas’ solicitors, but nothing was identified which Mr Couper did not supply, or would not have had to supply, to Irwin Mitchell’s solicitors.         
27.	Accordingly, I conclude that Mr Couper’s claim against Lord Thomas is caught by the ECRO for the reasons given by counsel for Lord Thomas. As noted above, given that conclusion, it is common ground that the claim was automatically struck out by virtue of Practice Direction 3C paragraph 3.3(1).               
Should Mr Couper be granted relief from sanction?
28.	By a draft application notice dated 6 December 2017, Mr Couper sought, if necessary, retrospective permission to issue the claim. Counsel for Mr Couper acknowledged that Practice Direction 3C contained no provision for permission to be sought and obtained retrospectively, but submitted that the Court had power to grant Mr Couper relief from the sanction of striking out pursuant to CPR rule 3.9. Accordingly, I will treat the application as one for relief from sanction under rule 3.9.
29.	Counsel for Lord Thomas submitted that the Court had no power to grant relief from sanction under rule 3.9 in these circumstances because the claim had already been struck out. I do not accept this. It is well established that rule 3.9 enables a court to grant relief from the sanction of striking out where a claim has been struck out for non-compliance with an unless order. I see no reason why it should not also empower the court to grant relief from the sanction of striking out in these circumstances.
30.	In considering whether to grant Mr Couper relief from sanction, the correct approach is that laid down in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3296. The first stage is to consider the seriousness and significance of the applicant’s failure to comply with the ECRO. Counsel for Lord Thomas submitted that it was a serious and significant breach. I agree. The whole point of the ECRO is to enable the Court to control the issuing of claims and the making of applications falling within the ambit of the ECRO. The requirement to obtain permission first is fundamental to achieving that objective. By failing to seek, let alone obtain, prior permission, Mr Couper undermined that objective. 
31.	The second stage is to consider why the default occurred. As counsel for Lord Thomas submitted, the simple answer is that Mr Couper failed to make the requisite application. He was acting in person at the time, so he cannot blame anyone else. He says in his witness statement that he believed that he did not need permission to bring, or make applications in, professional negligence proceedings, and that he received advice to that effect from a well-known firm of solicitors acting for him pro bono. As Mr Couper himself relates, however, he nevertheless applied for and obtained permission to make the applications against Irwin Mitchell discussed in paragraphs 11-13 above. Mr Couper does not explain why he did not make a similar application when he was about to issue the claim form against Lord Thomas.
32.	The third stage is to evaluate all the circumstances of the case. Counsel for Mr Couper submitted that Mr Couper had a good case for being granted permission. I accept that for the reasons explained below. I do not consider, however, that that is a sufficient reason to grant Mr Couper relief from sanction having regard to the seriousness and significance of the breach and the lack of any good excuse for it. I recognise that, given that I propose to give Mr Couper permission to issue a fresh claim, declining to grant relief will not put to an end to Mr Couper’s claim against Lord Thomas. It may, however, have limitation consequences. If so, it is right that Mr Couper should suffer those consequences.                   
Should Mr Couper be given permission to issue a fresh claim? 
33.	Counsel for Lord Thomas accepted that it made sense for the Court to consider whether to grant Mr Couper permission to issue a fresh claim, even though Mr Couper had not served notice of his application upon the defendants to the Main Claim, given that the party primarily interested in the question, Lord Thomas, was in a position to resist it. She submitted that permission should be refused since Mr Couper was essentially seeking to re-litigate matters which had been decided against him, and was again manifesting traits in his conduct of the proceedings which had led to the Court criticising him before.
34.	In my judgment Mr Couper should be given permission to issue a fresh claim against Lord Thomas, which should again be consolidated with his claim against Irwin Mitchell, for the following reasons. First, his claim against Irwin Mitchell did not require permission under the ECRO, and therefore will proceed any way (subject to any application to strike out or for summary judgment). Secondly, it is likely that, even if Mr Couper cannot proceed against Lord Thomas, Irwin Mitchell will issue a Part 20 claim for contribution against Lord Thomas. Thirdly, Mr Couper has explained that it was only as a result of the differing positions of Lord Thomas and Irwin Mitchell with respect to a standstill agreement that he issued separate claim forms against them. Fourthly, I do not consider that Mr Couper is attempting to re-litigate the Main Claim. His claim is that he was deprived of success in the Main Claim by his lawyers’ negligence. That is a different, although related, claim against different parties. Fifthly, counsel for Lord Thomas did not go so far as to submit that the proposed claim was totally without merit. I have not considered the merits of the claim in any detail, but based on what I have seen, I believe that she was right not to make that submission. In saying this, I should make it clear that I am not commenting on the merit or otherwise of any of the individual allegations of negligence, still less of the heads of loss pleaded in the Schedule of Loss and Damage. Lastly, it follows from the analysis of the scope of the ECRO above that Mr Couper will require the advance permission of one of the named judges to make any application (whether against Lord Thomas or Irwin Mitchell or both) in the consolidated action. That should be sufficient to prevent Mr Couper from conducting the claim against Lord Thomas in an unacceptable manner, but if Mr Couper’s conduct of the claim nevertheless fails to accord with the rules or with the standards expected of litigants, then there will be other remedies available. It would be disproportionate to prevent him from bringing the claim at all.
Conclusions
35.	For the reasons given above, I conclude that:
i)	Mr Couper’s claim against Lord Thomas is within the scope of the ECRO, and therefore it has been automatically struck out due to his failure to obtain permission from one of the named judges before issuing the claim form; and
ii)	Mr Couper should be refused relief from that sanction; but 
iii)	Mr Couper should be permitted to issue a further claim form against Lord Thomas.