Civil Restraint Orders
Read the entry taken from the Dictionary of Financial Remedies 2017, published February 2017.
law & practice 01/03/2017
There are several different routes by which a litigant can be prevented from making unmeritorious applications in financial remedy proceedings including on an application by the Attorney General1 and under the inherent jurisdiction2. The simplest and most obvious route however is an application for a civil restraint order ("CRO") in accordance with FPR rule 4.8, a rule which imports the comparable provisions of the Civil Procedure Rules 1998 rule 3.113.
Where the court strikes out a statement of case or dismisses an application4 that is totally without merit it is mandated to consider whether to make a CRO5. Similar provisions apply to a court dealing with any appeal in financial remedy proceedings6. Alternatively, the other party to the proceedings may apply for a CRO7.
There are three types of CRO; limited, extended and general.
A limited CRO may be made where a party has made two or more applications8 which are totally without merit9. Such an order, which is limited to the particular proceedings in which it is made10 but which lasts for the duration of those proceedings11, restrains a party from making any further applications without the permission of an identified judge12 and any applications made without that permission are automatically dismissed13. An application14 must enclose any written response provided by the other party15 and will be determined without a hearing16. The party may apply to the identified judge for amendment or discharge of the CRO17 or may (if permission is granted) appeal the CRO18.
An extended CRO may be made where a party has persistently made applications which are totally without merit19. It operates in the same way as a limited CRO but extends to applications in any court concerning any matter involving, relating to, touching upon or leading to the proceedings in which the order is made20. The court may elect to make an extended CRO with specific exceptions, leaving a party free to make a number of defined applications21. An extended CRO will be made for a specified period not exceeding 2 years22. The duration can be extended but not for longer than 2 years on each occasion23.
A general CRO may be made in circumstances where an extended CRP would not be sufficient or appropriate24. It operates in the same way as the limited and extended orders but prohibits any application in any court without the permission of the identified judge25. As with an extended CRO it is limited to a maximum of 2 years in the first instance26 but can be extended in the same way27.
1 Senior Courts Act 1981, s 42
2 Re Baggaley  EWHC 1496 (Fam). The inherent jurisdiction can be used not only to prevent unmeritorious applications but also to prohibit a person from acting as a McKenzie friend or to prevent personal misbehaviour on court premises. Unlike the extended and general CROs such an order can be extended indefinitely
3 Note that the authorities on CPR 1998 r 3.11 are therefore likely to be of assistance. See for an example Vlad v Judicial Appointments and Conduct Ombudsman  EWCA Civ 951
4 Including an application for permission to appeal (Veluppillai v Veluppillai & Ors  EWHC 3095 (Fam))
5 FPR 2010, rr 4.3(7), 4.4(5) and 18.13. The fact that the application was totally without merit should also be recorded on the face of the order
6 FPR 2010, r 30.11(4) and (5)
7 FPR 2010, PD 4B para 5.1. The application must be made using the Part 18 procedure and must specify the type of CRO sought
8 Note that the courts have shown a willingness to include within the definition of "application" informal emails sent to the court - see Veluppillai v Veluppillai & Ors  EWHC 3095 (Fam)
9 FPR 2010, PD 4B para 2.1
10 FPR 2010, PD 4B para 2.9(a)
11 FPR 2010, PD 4B para 2.9(b) unless otherwise ordered
12 FPR 2010, PD 4B para 2.2(a). If repeated unmeritorious applications for permission are made then the judge may direct that "if the party makes any further application for permission which is totally without merit the decision to dismiss the application will be final and there will be no right of appeal" unless granted by the identified judge (FPR 2010, PD 4B para 2.3(b)). Any application made must set out the grounds and be served on the other party providing them with at least 7 days to respond - FPR 2010, PD 4B para 2.4 and 2.5
13 FPR 2010, PD 4B para 2.3(a)
14 The application must be made in writing (FPR 2010, PD 4B para 2.6(a)) but Mostyn J has imposed additional restrictions requiring completion of a D11, payment of the appropriate fee and attendance at the issue counter in person - Veluppillai v Veluppillai & Ors  EWHC 3095 (Fam)
15 FPR 2010, PD 4B para 2.6(b)
16 FPR 2010, PD 4B para 2.6(c)
17 FPR 2010, PD 4B para 2.2(b)
18 FPR 2010, PD 4B para 2.2(c)
19 FPR 2010, PD 4B para 3.1
20 FPR 2010, PD 4B para 3.2(a)
21 See for an example Welch v Welch  EWHC 2622 (Fam)
22 FPR 2010, PD 4B para 3.9(a)
23 FPR 2010, PD 4B para 3.10
24 FPR2010, PD 4B para 4.1
25 FPR 2010, PD 4B para 4.2(a)
26 FPR 2010, PD 4B para 4.9(a)
27 FPR 2010, PD 4B para 4.10