Thakerar v Lynch Hall & Hornby

MR JUSTICE LEWISON: The final application I need to deal with today is the application by the defendants for the making of an extended civil restraint order against Ms Thakerar. Ms Thakerar has objected to this application being considered at all but it appears from correspondence, that first of all, Lynch Hall & Hornby asked the court in June to list their application for a civil restraint order, which had been adjourned by Mr Justice Rimer to be heard, together with Ms Thakerar’s applications. It appears also that Ms Thakerar was notified of that on 19 September 2005 when she was told that at the next hearing the court would be asked to consider the application for the civil restraint order and she was sent a copy of counsel’s skeleton argument earlier this week. I am therefore satisfied that she had had notice that the application was to be renewed and, of course, the application was one of which she was generally aware, both of its nature and its contents, since it has already been considered by Mr Justice Rimer.

The court has an inherent jurisdiction to make orders which prevent its processes from being abused. The leading authority on civil restraint orders is Bhamjee v Forsdick [2004] lWLR 88. In that case the Court of Appeal said this:

“A civil restraint order is likely to be appropriate when the litigant's conduct has the hallmark of one who is content to indulge in a course of conduct which evidences an obsessive resort to litigation and a disregard of the need to have reasonable grounds for making an application to the court. Normally we would not expect a civil restraint order to be made until after the litigant has made a number of applications in a single set of proceedings all of which have been dismissed because they were totally devoid of merit.”

That general observation has now been formalised by the practice direction C accompanying part 3 of the Civil Procedure Rules. That provides that a judge of the High Court may make an extended civil restraint order: “where a party has persistently issued claims or made applications which are totally without merit”. It will be noticed that the word “all” which appears in the judgment in Bhamjee does not appear in the practice direction and is not therefore a pre-condition of the jurisdiction, although clearly it will be relevant to the exercise of discretion.

I am in no doubt in the present case that Ms Thakerar is a litigant who does not take no for an answer. She routinely appeals against every decision adverse to her. She repeatedly applies for the same relief, even though the relief has been refused. I have been asked on almost every occasion that I have made a decision adverse to her to reconsider my decision. In one instance she went to Mr Justice Lawrence Collins to seek to persuade him to reopen the decision that I had made and then came to me, and this was the third time, asking for precisely the same things.

The defendants have produced a chronology of a number of applications that Ms Thakerar has made. Amongst the ones to which I shall draw attention are the following: she made an unsuccessful application before District Judge Rhodes to set aside a statutory demand; she made an unsuccessful application before me to stay that order; she then unsuccessfully appealed to Mr Justice Lightman; she unsuccessfully appealed again to the Court of Appeal, against the decision of Mr Justice Lightman; and she made an unsuccessful application for permission to appeal to the House of Lords.

She has made four applications for permission to appeal, three of which I have dismissed as being hopeless, one of which I have granted on a narrow ground relating to the jurisdiction of a bankruptcy registrar to make a third party debt order. But the grounds of appeal went far wider than that and that alone was the only ground which had any realistic prospect of success.

She has also had some success in persuading judges to adjourn hearings but those successes have almost always been on without notice applications where the defendant was not represented. She has also had some success in persuading judges, including me, to order the provision of transcripts at public expense. But these, in my judgment, are minor matters.

The course of conduct that Ms Thakerar has engaged in has been to appeal at every possible opportunity, to make repeated and often unsuccessful applications for adjournments on a number of different grounds. Although they have not all been unsuccessful, the vast majority have been hopeless. In my judgment, bearing in mind that this dispute all arises out of a liability of £1,000, the time has come for an extended civil restraint order to be made. This does not preclude Ms Thakerar from making applications; but she must get the court’s permission first. If an application has merit, permission will be granted.

Mr Evans-Tovey has placed before me a draft which follows closely the form of the order made in the Forsdick case and, subject to the substitution of my name for that of Mr Justice Rimer, I will make an order in that form.

I should expressly say, as the order provides, that the duration of the order is a period of two years from today.

I will not go behind Mr Justice Rimer’s previous assessment of £3,000 costs but I will add a further £500 to take account of an apportionment of the costs incurred in renewing the application today. So, I will assess costs summarily in the sum of £3,500.