Ending hopeless applications

08 Aug 2019

Public Law and Judicial Review

Public authorities are sometimes troubled with repetitive and hopeless applications. In this case, Tower Hamlets had to resist multiple hopeless applications after obtaining liability orders against Mr Gregory for non-payment of council tax. But Mr Gregory’s ability to issue further applications has now ended with the making of an extended civil restraint order (‘CRO’).

Mrs Justice Cutts reviewed the law on extended CROs and concluded that:

1. The threshold for making an extended CRO (that bites on any proceedings relating to a particular issue) is satisfied if the litigant has persistently issued claims or made applications which are totally without merit (see Practice Direction 3C).

2. ‘Persistence’ for an extended CRO is established with the making of at least three such applications (see Ludlam (a bankrupt) [2009] EWHC 2067).

3. Where an application is totally without merit judges are obliged to state that fact when dismissing the application (see CPR 3.3(7), 3.4(6), 23.12 & 54.12(7)). But where an order does not state that fact a court that is considering the making of a CRO can nevertheless decide for itself whether the application had the required status (see R(Kumar) v Secretary of State [2006] EWCA Civ 990, para 67).

4. ‘Totally without merit’ does not mean that an application is so hopeless and misconceived that a CRO is justified, it merely means that the application was ‘bound to fail’. In other words the failed application does not need to have been either abusive or vexatious (see R(Grace) v SSHD [2014] EWCA Civ 1091).

In the instant case only two of Mr Gregory’s applications had been marked by the judge as ‘totally without merit’. But other judges had made orders that, with the benefit of hindsight, also had this quality in the sense that Mr Gregory had made applications that were bound to fail, namely his applications challenging:

  1. The Magistrates’ Court dismissal of his application to set aside liability orders.
  2. The District Judge’s refusal to state a case (seeking to overturn the above dismissal).
  3. The High Court’s refusal of permission (to judicially review the above dismissal).
  4. The High Court’s refusal to set aside the above refusal of permission.
  5. The High Court’s refusal to set aside the above refusal (to set aside the above refusal of permission).

The Judge concluded that Mr Gregory “continues to seek to set aside and appeal determinations. He has shown himself utterly unable to take ‘no’ for an answer.” She found that “the ‘threat level’ of further unmeritorious applications is extremely high” and accordingly, she made an extended CRO for the maximum period allowed, namely for two years.

During this period Mr Gregory will not be able to issue any County Court or High Court proceedings that relate to the liability orders without first obtaining permission from a High Court judge.

Shomik Datta acted for Tower Hamlets at various stages in opposition to Mr Gregory’s numerous applications. They were instructed by JE Baring & Co.