Richard Achille v Philip Calcutt & Anor

Over the last ten years, Richard Achille has been a prolific litigant. He has brought multiple claims for damages and judicial review, sought permission to bring committal proceedings, and pursued appeals within the County Court, to the High Court and to the Court of Appeal. With one exception, his cases can be traced back to events a decade ago when he was suspended and then expelled from the Moseley Tennis Club following a tournament on 23 April 2014. It is clear that even now he remains aggrieved about his treatment by the tennis club and its officials including its then chairman (Philip Calcutt), its then secretary (Jane Carrington), the tournament organiser (Simon Haddleton), and the tournament referee (Sean Kettle). Further, he remains aggrieved by the connected actions of the Lawn Tennis Association (“the LTA”), the police, the King Edwards Camp Hill School for Girls (“the school”) and its then deputy head teacher. He also complains about the conduct of the lawyers who have acted for his adversaries, their insurers, the court staff and the judges who have determined his cases.

On no fewer than thirteen occasions, judges have certified that Mr Achille’s claims or applications have been totally without merit. Over that time, Mr Achille has twice been subject to civil restraint orders:

By an order made on 19 February 2024, I refused Mr Achille’s application for permission to bring contempt proceedings to commit Mr Calcutt and Ms Carrington, and certified that the contempt proceedings and Mr Achille’s application for permission were totally without merit. At a hearing on 14 June 2024, I heard the parties on the question of whether I should make a further civil restraint order and as to the proper costs orders in the committal proceedings.

Rule 3.11 of the Civil Procedure Rules 1998 and Practice Direction 3C provide for three different levels of civil restraint orders and put the inherent jurisdiction of the court to control vexatious litigation, recognised in a series of cases culminating in Bhamjee v. Forsdick [2003] EWCA Civ 1113, [2004] 1 W.L.R. 88, on a statutory footing:

It follows that a limited civil restraint order can effectively control a litigant who repeatedly makes applications in a single set of proceedings which are totally without merit but provides little control over a litigant who persistently issues claims or makes applications in multiple proceedings that are totally without merit. In such cases, the court will consider whether to make an extended or a general civil restraint order; the essential difference being that:

In order to make the system work, judges are required to record the fact that a claim or application is totally without merit when striking out such a claim (r.3.4(6)) or dismissing such an application (rr.23.12 and 52.20(5)-(6)). Unless disturbed on appeal, a judge’s finding that a claim or application is totally without merit is conclusive and the court subsequently considering whether to make a civil restraint order should not entertain argument as to whether such claims and applications were in fact totally without merit: Crimson Flower Productions Ltd v. Glass Slipper Ltd [2020] EWHC 942 (Ch); Chief Constable of Avon & Somerset Constabulary v. Gray [2019] EWCA Civ 1675. In addition, the court can take into account other claims or applications where, although not formally certified as having been totally without merit, the court considering making a civil restraint order is satisfied were totally without merit: Sartipy v. Tigris Industries Inc. [2019] EWCA Civ 225.

In considering the threshold question, the court is not limited to considering the totally without merit claims and applications made since the expiry of a previous civil restraint order: Society of Lloyd’s v. Noel [2015] EWHC 734 (QB), [2015] 1 W.L.R. 4393, at [38]-[46]. There is, in other words, no wiping clean of the slate. Indeed, a litigant’s conduct in continuing to make totally unmeritorious claims and applications upon the expiry of an earlier restraint order might readily justify swift action in making a further restraint order.

Once the threshold question of the repeated (or for the higher level orders, the persistent) making of claims and applications which are totally without merit has been met, the court must of course consider all the circumstances in order to determine whether it should make a civil restraint order at all; whether any such order should be a limited, extended or general civil restraint order; and the terms of the order.

One Lady Justice, four High Court Judges (two of whom are now judges of the Court of Appeal), four Circuit Judges (each of whom either is or was authorised to sit as a judge of the High Court), and one Upper Tribunal Judge (who is also authorised to sit as a judge of the High Court), have certified Mr Achille’s claims and applications to have been totally without merit:

Mr Achille seeks to minimise his conduct and explain the context behind these cases. For example, he maintains that the court had lost the file and was responsible for the “error” that led to Deputy District Judge Beatty setting aside the default judgment and that she wrongly set aside the judgment despite not having any such application before her. He complains that Judge McKenna therefore made a mistake when he found that Mr Achille’s appeal against the deputy district judge’s order was wholly without merit. On another occasion, he maintains that a pro bono lawyer advised him that Judge Worster had been wrong to reject an amendment application and certify it as totally without merit. He points to the fact that Judge McKenna had not subsequently found at trial that Mr Achille’s underlying claims had been totally without merit. Further, he curiously argues that Judge Kelly had been illogical in marking one application to lift the stay as being totally without merit but not so marking the second. The answer to that submission is that Judge Kelly herself remarked that she was “only just” persuaded not to mark the second application as totally without merit; a view that Males LJ later described as generous.

There are echoes in these arguments of Mr Achille’s blunt submissions to the Court of Appeal in Achille v. Birmingham County Court [2021] EWCA Civ 1388 when challenging the earlier civil restraint order that one judicial decision was “garbage” and that a judge was “legally illiterate”.

Mr Achille criticises my judgment upon his committal claim and speculates as to whether I might not have found the claim to have been totally without merit if certain further evidence had been before me. Other than the findings that the committal proceedings and his proposed appeal from my February order were totally without merit, he argues that the previous findings that he had made applications that were totally without merit are now old.

Worryingly, Mr Achille complains of judicial racism. He made a similar allegation to the Court of Appeal when seeking to appeal the earlier extended civil restraint order. Much is asserted but Mr Achille has not presented a shred of evidence of racism, bias or any other judicial misconduct.

While Mr Achille denies that this is his intention, the difficulty with all of these submissions is that they invite me to go behind the earlier rulings that these thirteen claims and applications were totally without merit. For the reasons already explained, it is inappropriate for me to review each of these claims and applications in order to determine afresh whether they were in fact totally without merit: Glass Slipper; Gray; Achille v. Birmingham County Court [2021] EWCA Civ 1388.

Upon this evidence, Mr Achille has clearly persisted in issuing claims or making applications which are totally without merit. Accordingly, the threshold condition for the making of a civil restraint order is met.

Once the threshold condition is met, the court may make a civil restraint order but is not bound to exercise its jurisdiction to do so. It is, in my judgment, relevant that Mr Achille has previously both been warned and ultimately made the subject of earlier civil restraint orders:

In my February 2024 judgment, I observed that Mr Achille had become somewhat obsessed with these issues and that such obsession endured notwithstanding the passage of time and earlier civil restraint orders. Whipple LJ observed that the proposed appeal from my order was part of a long campaign of litigation by Mr Achille.

Mr Achille’s own submissions make plain that he does not accept any real fault and believes that others, including his opponents, their lawyers and insurers, the court staff and a substantial number of judges are responsible for his woes. I therefore accept Ms Bell’s submission that Mr Achille has demonstrated an alarming lack of insight into his own responsibility for having pursued a substantial number of claims and applications that were totally without merit over the course of a decade. Taking into account:

Mr Achille argues that the effect of a civil restraint order will be to prevent his being able to issue any claims or make any applications because he would not be able to afford the court fee to allow him to seek the court’s permission. He argues that he will therefore be hamstrung in pursuing his existing proceedings and that a further restraint order would infringe his Article 6 rights.

I acknowledge that the effect of paragraph 19 of Schedule 2 to the Civil Proceedings Fees Order 2008 is that litigants who are subject to a civil restraint order must pay the court fee in full upon seeking permission to issue proceedings or take any step in proceedings regardless of their entitlement to fee remission. They are, however, entitled to a refund in the event that the court subsequently grants permission. Thus:

Mr Achille’s previous argument that a restraint order will prevent his access to justice was rejected by the Court of Appeal in Achille v. Birmingham County Court [2021] EWCA Civ 1388. Sir Nigel Davis observed at [26]-[27]:

“26.

The limitation on access to justice connoted in the making of a civil restraint order is legally enshrined in the Civil Procedure Rules r.3.11 and in Practice Direction 3C and reflects the inherent jurisdiction of the court to guard against its processes being misused. The interests of a claimant, it must always be remembered, are not the only interests to be considered. There are also the interests of defendants to be taken into account, and they are not to be unduly vexed with the costs and inconvenience of repeated unsustainable claims brought against them. Furthermore, there are also the interests of the courts and of the good administration of justice to be taken into account. Courts cannot allow themselves to be unduly distracted with repeated wholly unarguable claims which simply operate to put back the hearings of other litigants in the courts.

27.

Moreover, it is to be emphasised that a civil restraint order does not wholly prohibit further litigation. Instead it provides an extra filter, requiring permission from a judge before any fresh claim or fresh application can be pursued by the litigant in question.”

The effect of the 2008 Order was directly addressed by the Court of Appeal in Gray. In that case, the judge had identified that the fee payable by a litigant in 2019 who was subject to a civil restraint order was £55. The judge observed that the fee equated to the bulk of a week’s state benefits received by Mr Gray. The judge concluded that even a fee of £55 to someone in Mr Gray’s financial position acted as an effective “total ban” on his seeking the court’s permission. Accordingly, he refused to extend an earlier general civil restraint order. In reversing the judge’s decision and imposing a general civil restraint order, Irwin LJ said, at [38]:

“£55 may be a significant sum for someone in receipt of benefits but without detailed evidence showing that the individual would be unable to access that amount of money by borrowing, from support by friends and family, by obtaining legal aid or legal representation subject to a damages-based agreement or conditional fee agreement, it seems to me it was not open to the court simply to conclude without more that the fee represented a bar to litigation in this way. If it was so in this case it would be so in respect of very many of those subject to civil restraint.”

Irwin LJ added, at [41]:

“On the other hand, the fact that the fee will not be returned in an unmeritorious claim must represent a legitimate deterrent to making such claims.”

The equivalent fee payable under the 2008 Order upon an application for permission is now £65: Schedule 1, para.1.8(a). No evidence has been placed before me that would enable me to decide that Mr Achille would not be able to raise that sum such that the requirement to pay £65 represents a bar – rather than a legitimate disincentive – to further litigation by a prolific litigant who has persistently issued claims and made applications that are totally without merit. Indeed, on the contrary, there is some evidence before me of an apparent willingness and ability now to pay £9,800 in respect of an earlier costs order.

Taking all of these matters into account, I am satisfied upon the evidence that, unless a further civil restraint order is made, Mr Achille is likely to continue to issue further claims and make further applications in connection, in broad terms, with the events at the tennis club in 2014 that will also prove on examination to be totally without merit. Such claims and applications will put other parties, many of whom will have already endured the cost, stress and inconvenience of a decade of ill-judged litigation, to yet further cost, stress and inconvenience. Further, given that Mr Achille (i) qualifies for help with court fees; (ii) has struggled in the past to pay earlier costs orders; (iii) now argues that even a requirement to pay relatively modest court fees would affect his access to justice; and (iv) for reasons that I explain below, is about to be ordered to pay a further very substantial costs order, his opponents are unlikely to be able to enforce any future costs awards in their favour. In addition, further unmeritorious claims and applications are likely to cause prejudice to other litigants seeking timely access to the courts.

Balanced against these factors, I consider that the additional hurdle of requiring Mr Achille to satisfy a judge that any further claim or application has merit before it can be issued or made is necessary, proportionate and entirely justified.

I reject Mr Achille’s submission that, if an order is made, it should be a limited civil restraint order. Such an order would only restrain his making further applications in these proceedings. Given that permission to bring these contempt proceedings and Mr Achille’s application to appeal my ruling have already been refused, it is doubtful whether a limited order would have any real impact. In any event, a limited order would do nothing to control yet further claims and applications in other proceedings and would not, in my judgment, provide the restraint that is now necessary and appropriate.

Equally, I reject Ms Bell’s submission that a general civil restraint order is required. While the unmeritorious application for judicial review in claim CO/4666/2016 arose from the refusal of permission to appeal an order in proceedings that had no apparent connection to the events at Moseley Tennis Club, that is very much an outlier. On the evidence, Mr Achille is not someone who has displayed a “scattergun approach” to litigation on a number of different grievances but rather someone who has obsessively and creatively pursued different parties in connection with events that broadly arose from events at Moseley Tennis Club in 2014.

I reject Mr Achille’s fallback position that any extended civil restraint order should be limited in scope so that it only restrains claims against Mr Calcutt and Ms Carrington, and that it should not prevent his making applications or bringing appeals in existing proceedings. Such modifications would deprive the order of much of its force given Mr Achille’s track record for:

Accordingly, I conclude that an extended civil restraint order is required and that a well-drafted extended order will be both sufficient and appropriate to restrain Mr Achille from issuing further claims and making further applications that are totally without merit arising in broad terms from events at the tennis club in 2014. I therefore make such order for a period of three years. Such maximum period is both necessary and appropriate given Mr Achille’s persistence after all this time and the failure of earlier orders to bring this conduct to an end.

Some care will need to be taken with the drafting of the order given Mr Achille’s track record in order to ensure that it achieves the desired objective. The complexity of the drafting of an appropriately wide extended civil restraint order is not, however, good reason to give up on the exercise and simply make a general civil restraint order.

I will hear the parties on handing down this judgment as to the terms that best achieve such objective.

These contempt proceedings have fallen at the first hurdle in that the court has refused Mr Achille’s applications for permission to seek committal orders. Mr Calcutt and Ms Carrington have, therefore, been wholly successful in their defence of these proceedings and the general rule is that Mr Achille should now pay their costs: r.44.2(2).

In his submissions, Mr Achille somewhat optimistically argues that Mr Calcutt and Ms Carrington should be ordered to pay his costs; alternatively, that there should be no order as to costs. He submits that the contempt proceedings had arisen out of drafting errors made by the defendants and their counsel, and that Mr Calcutt and Ms Carrington had had the opportunity to clarify or correct matters. Further, he seeks to rely on an email from insurers in respect of their conduct of other proceedings. The email was not before me in evidence and simply providing additional documents to a judge shortly before a hearing is no substitute for serving evidence.

Further, Mr Achille argues that he enjoys the protection of the qualified one-way costs shifting (QOCS) rules at rr.44.13-44.17 such that the court should restrict the enforcement of any costs order against him pursuant to r.44.14. While acknowledging that the committal proceedings were not themselves personal injury proceedings, Mr Achille argues that the allegations arose out of claim D90BM137 and that such claim included a claim for personal injuries. Further, Mr Achille relies on a previous assertion by Kevin Lawson of Browne Jacobson LLP that the alleged interference with the administration of justice was in relation to existing proceedings.

In any event, Mr Achille argues that these proceedings are closely associated with two other claims:

There is, in my judgment, no merit in these arguments:

Accordingly, I direct that Mr Achille should now pay Mr Calcutt and Ms Carrington’s costs of these proceedings. It is common ground that such costs should be awarded on the standard basis.

Such costs should include the costs of the strike-out application. While that application was never formally decided given my case management decision to consider first the question of permission under r.81.3, it was ultimately an application to strike-out contempt proceedings which were totally without merit. Further, the order should include the costs incurred in Mr Achille’s unsuccessful applications to adjourn this hearing. Mr Achille’s submission that such costs were excessive is an assessment argument and not a reason why he should not be ordered to pay costs.

Mr Achille’s liability for costs will have to be assessed by detailed assessment if it cannot be agreed. There is no good reason to depart from the usual rule that he should be ordered to make a payment on account of his liability pursuant to r.44.2(8). I have considered the schedule of costs and note that the defendants’ total costs of these proceedings amount to £52,548.57. In my judgment, the reasonable sum to be paid on account is £30,000.