CPR 3.11 provides that a practice direction may set out the: 1) circumstances in which a court may make a civil restraint order; 2) procedure where a party applies for a civil restraint order; and 3) consequences of a civil restraint order.
Practice Direction 3C provides for three kinds of civil restraint order: 1) limited; 2) extended; and 3) general.
A limited order may be made ‘where a party has made 2 or more applications which are totally without merit’. An extended order may be made ‘where a party has persistently issued claims or made applications which are totally without merit’.
A general order may be made ‘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 civil restraint order would not be sufficient or appropriate’.
“Totally without merit”
A claim or application is totally without merit if it is bound to fail. That is, there is no rational basis on which it could succeed. It need not be abusive, made in bad faith, or supported by false documents.
Persistence in this context requires at least three such claims, or applications. The Court of Appeal added seven further clarifications. The third and seventh are particularly important.
Only claims or applications where the party in question is the claimant, counterclaimant, or applicant can be counted. A defendant or respondent may behave badly, for example, by telling lies in evidence, producing fraudulent documents, or putting forward defences in bad faith, however, that does not constitute issuing claims, or making applications.
When considering whether to make a restraint order, the court is entitled to take into account any previous claims, or applications, which the court concludes were totally without merit. The court is not limited to claims or applications so certified at the time. In such cases, however, the court will need to ensure that there is sufficient information about the previous claim, or application in question.