Connah v Plymouth Hospitals NHS Trust

SIR ANDREW MORRITT: Lord Justice Dyson will give the first judgment.

LORD JUSTICE DYSON: In these proceedings Mr Connah, who until now has been a litigant in person, claims damages for clinical negligence arising from the death of his wife in March 1998. It is his case that her death was the result of negligence on the part of the respondent while she was a patient in Derriford Hospital. He instituted these proceedings in March 2001. Negligence is denied. There came a stage in the proceedings when the appellant alleged that CT scans and X -rays which had been disclosed by the respondent did not relate to his wife. Much of the procedural complexity in the whole of this case results from the appellant's persistent belief that the respondent had not made proper disclosure of medical records.

The appellant appealed with the permission of Brooke LJ against three orders made by His Honour Judge Overend, the designated civil judge in the Torquay Newton Abbott County Court. The first was made on 31st October 2003 debarring the appellant from making any further application in the proceedings without the permission of the designated civil judge or his nominated deputy. It further provided that if the appellant wished to apply for permission to make any further application, the application must be in writing to Judge Overend and it would be dealt with on paper. This order pre -dated CPR 3.11 and its Supplementary Practice Direction. It was what became known as a Bhamjee order made under the court's inherent jurisdiction (see Bhamjee & Forsdick [2002] EWCA Civ 1113; [2004] 1 WLR 88). I shall refer to this order as "the Bhamjee order".

The second order appealed against was made on 1st December 2003, whereby Judge Overend struck out the appellant's notice of appeal against the Bhamjee order on the grounds that the appellant had not sought permission to make an application to the designated civil judge in accordance with the provisions of the Bhamjee order. The third order before this court was made on 20th January 2006 by Judge Overend sitting as a High Court Judge under section 9 of the Supreme Court Act 1981. This was an extended civil restraint order effective for one year. I shall refer to its detail later in this judgment.

The appellant now accepts, rightly in my view, that prior to 31st October 2003 he had made a sufficient number of ill -conceived applications to justify the making of the Bhamjee order. He no longer appeals against that order. The respondent accepts that the judge should not have made the second order under appeal. In my judgment it is right to do so. It was open to the judge to dismiss the application for permission to appeal the earlier orders of 31st October on the grounds that it had no real prospect of success. But it was not open to him to dismiss it on the ground that in making the application the appellant had not complied with the provisions of the Bhamjee order. The order provided that if the appellant wished to "apply for permission to make any further application [in the proceedings] then an application for such permission must be made in writing to His Honour Judge Overend and the application would be dealt with on paper alone."

Upon its true construction, this provision did not apply to an application for permission to appeal against the Bhamjee order itself. It will be a rare case in which it would be appropriate to introduce into a Bhamjee order a requirement that a person who wishes to appeal against the order should follow the very procedure prescribed by the order if he seeks to appeal (see paragraph 48 of the judgment in Bhamjee & Forsdick). If such a requirement was ever considered appropriate, it would be necessary to articulate it expressly. That was not done in this case.

The focus of this appeal is therefore on the question whether the judge should have made the order of 20th January 2006. It is however necessary to place that order in its context. For this purpose a brief description of the procedural history preceding it is needed.

In 2002 the appellant issued a number of applications in relation to what he considered to be inadequate disclosure by the respondent. These culminated in an order made on 21st December 2000 by District Judge Meredith, that the defence was struck out on the ground that the respondent had failed to disclose Mrs Connah's medical records. Judgment was ordered to be entered in favour of the appellant for damages to be assessed. The respondent was ordered to pay the appellant's costs. The respondent appealed against the order. The appeal was not heard until 21st May 2003.

On 17th February 2003, the appellant filed an application notice seeking tapes of four court hearings that took place in 2002, and an order that the respondent's appeal be struck out. The application in relation to the tapes was for "inspection by an expert to prove that removal of sections of the tape recordings had taken place to stop action being taken against Mr S Lindsay, partner, and Miss SA Bryars, solicitor, of Bevan Ashford Trust."

On 7th March 2003 Judge Overend dismissed the application for the tapes and adjourned this High Court application. On 21st May Judge Overend allowed the respondent's appeal. Accordingly the judgment was set aside. He directed that the preliminary issue be tried as to whether the scans disclosed by the respondent were those of Mrs Connah and made orders for the exchange of expert evidence in relation to that issue. A joint report was to be produced. On 23rd May 2003 the appellant filed a further application seeking judgment on the grounds that "fraudulent falsification of CT scans has taken place by the defendants". The judge directed that the hearing of this application be adjourned pending the hearing of the preliminary issue. That issue was heard by Judge Overend on 19th September 2003. He had before him a joint statement of the experts, Mr Whaites and Mr O'Brien, which stated that,

The appellant did not seek permission to appeal this decision. Instead, on 21st September 2003, he issued an application under the Human Rights Act 1998 for an order that by his decisions the judge had interfered with his human rights. A hearing was fixed for 31st October to deal with paragraph 6 of the appellant's application, dated 17th February. The respondent decided to make a formal application for a civil restraint order on the same occasion. The application was served in draft on the appellant by hand on 28th October. On the following day, he wrote to the respondent's solicitors saying that because he had issued an application based on the Human Rights Act he did not intend to attend "the unlawful hearing", on 31st October. The judge proceeded to make the Bhamjee order to which I have already referred. He also struck out the application of the 23rd September and dismissed paragraph 6 of the application of 17th February 2003.

On 11th November the appellant wrote to the court applying to set aside the order of 31st October. On 18th November the judge dismissed this application on the ground that the appellant had not complied with the procedural terms imposed by the order of 31st October itself. He also ordered the appellant to cease writing to the Torquay and Newton Abbot County Court or to West Group Manager or members of their offices. On 19th November the appellant filed a notice seeking to appeal the orders of 31st October. It was this application that the judge struck out on 1st December on the ground that no application for permission had been made to the designated civil judge in accordance with the provisions of the Bhamjee order. On 5th December 2003 the district judge made various orders for the future conduct of this litigation. On 15th April 2004 Judge Overend made an order pursuant to the respondent's application that unless the appellant file and serve a schedule of loss and exchange copies of his expert's reports on liability by 22nd April, the claim would be struck out. He also made an order of his own initiative, that the claim be struck out and that the respondent be entitled to enter judgment and to the costs of the action to be assessed if not agreed, unless the appellant's completed listing questionnaire was filed by 22nd April.

On 20th April the appellant applied to set aside the orders dated 15th April on the ground that they were incompatible - that is to say that his Convention rights - and were therefore unlawful. He sought a stay of the proceedings since the respondent was "blocked" by "human rights notice" from any further involvement in the case. The appellant did not comply with either of the unless orders dated 15th April. Accordingly the claim was struck out on 22nd April. On 11th May Judge Overend ordered that the application of 22nd April be struck out as an abuse of process, "being totally devoid of merit and incoherent". He ordered the appellant to pay the respondent's costs of the action to be assessed if not agreed.

On 28th July 2002 District Judge Corrigan ordered the appellant to attend court to provide information about his means for the purposes of satisfying the judgment debt in favour of the respondent in the sum of £10,000 arising from the orders of 31st October 2003. The appellant did not attend court on 16th September as ordered. On 24th September Judge Overend found him guilty of contempt by disobeying the order of 20th July and imposed a suspended sentence of seven days' imprisonment. On 26th November 2004 the appellant served four "Human Rights Act" notices on Torquay County Court. On 9 December 2004 the court manager replied, saying that he did not intend to take any action on the "notices" and would not comment on the matter until and unless the court have been formally notified by the European Court of Human Rights of any application made to that court by the appellant. The European Court acknowledged the appellant's application on 8th February 2005.

On 20th and 28th October 2005 the appellant wrote letters to the Torquay and Newton Abbott County Court requesting (a) a copy of a letter sent to him by the court dismissing his application dated 1st February 2002 to strike out the defence for inadequate disclosure, and (b) copies of "all certified court transcripts as yet undisclosed". He required this material for use in connection with the application to the European Court.

On 1st November Mr Sweeney, area complaints manager for Devon and Cornwall, replied, saying that he had asked the court to search for the documents requested by the appellant. He also said that he was sure that the appellant was aware of the terms of the "civil restraint order which expired on 21st October 2005". The appellant wrote to Mr Sweeney on 2nd November saying that he was unaware of the "civil restraint order", and asked a number of questions about it. It would seem that the appellant did not appreciate that Mr Sweeney was referring to the Bhamjee order. The appellant wrote two further letters and made telephone calls to the court, repeating his request for the documents that he had sought by his earlier letters.

I now come to the order of 20th January 2006. Section 1 of the order recited, inter alia, that the court had "found that the above named person [the appellant] has persistently issued claims or made applications that are totally without merit". Section 2 was in these terms:

There was some discussion before this court as to whether by 20th January 2006 the Bhamjee order was still extant. That order was not expressed to be of any particular duration. Mr Sweeney had no authority to state that it expired on 21st October 2005. It plainly did not. The judgment in Bhamjee & Forsdick made it clear that an extended civil restraint order should be for a period not exceeding two years (see paragraph 52(5)). No such limited duration was suggested in relation to a civil restraint order. By not specifying a duration, the Bhamjee order of 31st October 2003 followed the guidelines given in the Bhamjee decision.

Mr Coppel submitted that the Bhamjee order ceased to have any effect as from 22nd April 2004 when the claim was struck out. This submission raised the question of whether a subsequent application could be an application "in the proceedings" within the meaning of the order. He also submitted that this court should declare that the order was revoked with effect from 31st October 2005 on the ground that Mr Sweeney's letter, dated 1st November, had raised an expectation in the mind of the appellant that the order no longer had effect after 31st October 2005.

For reasons that I shall explain, I do not find it necessary to decide these points. It is first, however, necessary to refer to the relevant provision of the CPR. Part 2 of Practice Direction C, supplementing the CPR, provides for "limited civil restraint orders" which may be made where a party makes two or more applications which are totally without merit. Where such an order is made the party against whom it is made "will be restrained from making any further applications in the proceedings in which the order was made without first obtaining the permission of the judge identified in the order". Paragraph 3 provides for "extended civil restraint orders", which may be made "where a party has persistently issued claims or made applications which are totally without merit". Unless the court otherwise orders, the party against whom such an order is made is restrained from issuing claims or making applications in the specified course "concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order was made without first obtaining the permission of the judge identified in the order."

In my judgment, the order of 20th January 2006 should not have been made for the following reasons. First, it was made without notice to the appellant. In The Queen on theapplication of Ranbir Kumar v Secretary of State forConstitutional Affairs [2006] EWCA Civ 990 paragraphs 71 and 74, this court stated that a civil restraint order should usually be made on notice to the person affected being given sufficient time to prepare his defence. A court can make an interim order on its own initiative without hearing the parties or giving them an opportunity to make representations (see CPR 3.3(4)), but only in an exceptional case where the situation really warrants it. There was no urgency on 29th January 2006 and no reason at all for not giving the appellant notice of the proposal to make an extended civil restraint order. Secondly, there was, in any event, no material before the court to justify the making of the order. The order recited that the appellant had "persistently issued claims or made applications which are totally without merit". But the only matters referred to in the body of the order were the letters dated 20th and 28th October 2004 and further letters written and telephone calls made since 28th October. The letters and telephone calls were merely requests for a copy of a letter sent to him by the court and the transcripts of those court hearings. He said that he needed these documents in order to pursue that application in the European Court of Human Rights.

In my judgment, even if these requests were applications within the meaning of the Bhamjee order, they were not ones which could be said to be totally without merit. We have not been shown the documents which the appellant has filed in the European Court of Human Rights, but on the material which has been placed before us, there was no evidence on which the judge could properly consider that the application to Strasbourg itself was totally without merit. The documents sought by the appellant were requested for the purposes of advancing that application. It is also to be noted that the requests made by letter and telephone were not refused by the county court on the grounds that they were totally without merit. Thirdly, even if the requests were applications and even if they were totally without merit, this was not a case in which an extended civil restraint order was justified. There are important differences between the limited civil restraint order regime governed by paragraph 2 of the practice Direction and the extended civil restraint order regime which is governed by paragraph 3. A limited civil restraint order may be made where a party has made two or more applications which are totally without merit. Where an order is made, the party against whom it is made will be restrained from making any further application in the proceedings in which the order is made without permission. An extended civil restraint order may be made where a party has persistently issued claims or made applications that are totally without merit. Unless the court otherwise orders, where an order is made the party against whom it is made will be restrained from making applications "concerning any matter involving or relating to or touching upon or leading to the proceedings to which the order is made without permission."

It will be seen that the threshold for extended civil restraint order is higher than that for a limited civil restraint order: persistent applications or claims for the former, and two or more applications for the latter. That is because the effect of an extended civil restraint order is more draconian. It does not merely restrain the applicant in the instant proceedings; it also restrains the issue of claims or making of applications in other proceedings which may loosely be said to be related to the instant proceeding. The vice at which the extended civil restraint order is directed is the litigant who issues and makes applications in more than one set of proceedings. There is no hint in any of the appellant's actions to date that he is likely to issue other proceedings against the respondent or against other parties involving or relating to or touching upon the instant proceedings. For that reason alone, in my judgment, the decision to make an extended civil restraint order on 20th January 2006 was misconceived.

For these reasons I would allow the appeal against the further order.

There remains the question whether the Bhamjee order remained extant on 20th January 2006 and whether, if it was no longer extant, it would be right to substitute a limited restraint order for the extended order that was made on 20th January. Whatever the position may have been on the eve of 20th January, once the court made an extended civil restraint order, the Bhamjee order must have been discharged. In relation to applications in the instant proceedings, the two orders cover the same ground. The later order superseded the earlier order. Having decided that the extended civil restraint order should be discharged, would it be right to substitute a limited civil restraint order? I take full account of the earlier history of the litigation. But the fact remains that the claim has been struck out and the appellant has said that he does not intend to seek permission to appeal against the order striking out his claim. There is nothing to suggest that the appellant will take further steps in these proceedings. He has embarked on entirely separate proceedings in the European Court of Human Rights. His behaviour since his claim was struck out has been restrained.

In these circumstances I do not consider that it would be right to substitute a limited civil restraint order for the order that was made on 20th January 2006. In the result, I would dismiss the appeal against the first order and allow the appeal against the second and third orders.

LADY JUSTICE ARDEN: I agree.

SIR ANDREW MORRITT: I also agree.