Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE WILKIE
Between :
Peter Carroll | Claimant |
- and - | |
Christine Kynaston | Defendant |
Both parties appeared in person
Hearing dates: 9 May 2005
Judgment
Mr Justice Wilkie :
This is an application by the defendant Christine Kynaston in the above three actions in which she applies for: (1.) a general Civil Restraint Order against the claimant Peter Carroll pursuant to CPR Rule 3.11 and PD 3C para 4; (2.) a permanent stay on each of the three claims in which this application is made; and (3.) costs on a summary assessment. The grounds upon which this application is made are “ the claimant, who has been subject to an extended CRO since 20/11/2003, has disregarded the procedures set down in the order and has persisted in making applications entirely devoid of merit.”
This is the latest in a long series of applications made by each of the claimant and defendant in a series of cases which arise from the events surrounding and following their involvement as colleagues in Claims Direct. These various applications have been before a number of judges at different levels up to and including the Court of Appeal. Those judges, and in particular those of the High Court and Court of Appeal, who have dealt with the matter have repeatedly expressed their concern that this is, by now, sterile and pointless litigation which cannot but harm each of the claimant and defendant and that, in their view, it would be in the bests interests of the parties to bring that litigation to an end. Having had the opportunity to observe the claimant and defendant argue this application before me in person, I whole heartedly agree with that sentiment. Indeed, in the course of argument each of them repeatedly indicated, as they have done on a previous occasion before Mr Justice Beatson, that it was their wish that the other would leave them alone and that the litigation would end. Unfortunately, it appears that when it comes to the point neither of them is capable of walking away from the litigation in circumstances in which, they perceive, that the other may have in any way had a success against them.
Litigation of this type not only is profoundly damaging to the parties, it also makes disproportionate demands on the resources of the Court and, accordingly, affects other litigation and litigants whose cases are delayed because of the resources taken up by it. In addition, it is apparent from the cases which are already in train that the dispute between the claimant and the defendant is capable of drawing into the maelstrom third parties. One of the bases for the defendant’s application for a general Civil Restraint Order is that it is said that Mr Carroll has threatened litigation against third parties for no reason other than their association with the defendant. That is a matter upon which I must adjudicate in due course in dealing with this application.
The Court has certain powers by which it may seek to protect itself, other litigants, and the parties from disproportionate and sterile abuse of the court process and, in that way, to give effect to the overriding objective enabling the Court to deal with cases justly having regard to the matters identified in Part 1.1(2) of the CPR. The powers which I am asked to exercise in this application are apposite for that purpose and in considering this application I have had particular regard to the overriding objective.
The extended Civil Restraint Order which was made on 20 November 2003, amongst other things, prohibited Mr Carroll from making any further application or taking any steps without permission which was to be obtained in accordance with a procedure set out in the order,
“in or out of or concerning any matters involving or relating to or touching upon or leading to the proceedings details of which are set out below”.
Those proceedings were identified by their case numbers. There were fifteen of them in all. Mrs Kynaston has helpfully summarised for me the state of play in respect of each of them:
Case No HQ 02X3591 has been settled;
Case NN150041 has been discontinued;
Cases NN250042 and HQ02X03192 are the same action. The claim by Mr Carroll has been discontinued but the counter claim made by Mrs Kynaston proceeds;
Claims No WX020187 and HQ43X00511 are the same claim. It has been struck out;
Claims No WX201841 and HQ03X00979 are the same claim. The claimant is a Mr Richardson and the defendant is Mrs Kynaston. That claim proceeds and I am informed that there is a trial in June of this year;
Claims No NN250246 and HQ03X00124 are claims brought by a Mr Bagnall against Mrs Kynaston. I am informed that no step has been taken by the claimant since an order was obtained by Mr Bagnall on 19 May 2003 and that presently the action is dormant;
The three actions the subject of this application are, respectively, a claim for breach of contract, malicious prosecution, libel and defamation and harassment brought by Mr Carroll against Mrs Kynaston (HQ03X03185), a claim for defamation and harassment brought by Mr Carroll against Mrs Kynaston (NN250185 and HQ03X00127) and a claim in libel and defamation and, it appears, malicious falsehood brought by Mr Carroll against Mrs Kynaston (HQ03X00480).
THE APPLICATION FOR A PERMANENT STAY OF THESE THREE ACTIONS:
These three actions, together with HQ02X03192, were amongst actions the subject of various applications heard by Mr Justice Beatson on 19 August 2004. In paragraph 2 of his judgment in that case he gave a brief description of the circumstances in which they were said to have arisen. He records that, in respect of HQ02X03192, Mrs Kynaston’s counter claim had been stayed on 20 March 2003 by Mr Justice Gage pending the resolution of another action between the parties (HQ02X03591). That action had been compromised and was the subject of a consent order by Mr Justice Gray in September 2003. Mrs Kynaston’s application on that occasion was that the stay on that counter claim be lifted. Having heard argument, Mr Justice Beatson gave Mrs Kynaston leave to take further steps in her counter claim in that action. Mr Justice Beatson refused her application that Mr Carroll’s defence to her counter claim in that action be struck out.
As far as the three actions the subject of this application are concerned, it appears that at some point those three actions had been stayed. Mrs Kynaston was applying to have them struck out. She was also applying for leave to take further steps in each of them. Mr Justice Beatson dealt with these three matters in paragraphs 23 to 26 of his judgment. In the course of those paragraphs he records that Mr Carroll said that he would be content with a permanent stay of these actions but that what he was not content with was to be at risk in relation to costs for them. Mr Justice Beatson recorded that he saw a real danger of the volcano that had perhaps been capped temporarily erupting. He says as follows:
“The voluminous papers in this case are full of references by both parties to their desire to walk away from this and get on with their lives. And yet, both of them are still here and are making applications.”
Mr Justice Beatson’s conclusion was that the cases should come before a judge who is a defamation specialist so that the issues in the counter claim 03192 and the claims brought by Mr Carroll could be considered and directions given as to the future conduct of those proceedings. In those circumstances the order which was made as one to give the defendant Mrs Kynaston leave to take further steps in these three actions and for these actions, together with No 03192, to come before Mr Justice Tugenhadt in the week commencing 6 September 2004 for further directions and, if that were not possible, to be listed before Mr Justice Gray on a date to be fixed.
It appears, therefore, that on 19 August 2004 Mr Carroll was content for there to be a permanent stay on these three actions subject to his not being at risk in relation to the costs of them. The position has moved on somewhat in that it now appears that both Mrs Kynaston, whose application for a permanent stay this now is, and Mr Carroll are content that there should be a permanent stay on each of these three actions. In the light of the unhappy history of the litigation between the claimant and the defendant and in the light of their expressed positions before me today I can see every reason why it is in the interests of justice for these three claims to be stayed permanently and I therefore so order.
THE APPLICATION FOR A GENERAL CIVIL RESTRAINT ORDER:
I now turn to consider the application for a general Civil Restraint Order. The power to make such an order is contained in Part 3.11 of the CPR. The substance of the power is contained in the Practice Direction – Civil Restraint Orders - which supplements CPR Part 3.11. The Practice Direction provides for three types of civil restraint order – limited, extended and general. The distinction between the extended restraint order and the general civil restraint order is that whereas the extended civil restraint order is limited to restraining the issue of claims or the making of applications “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made” the general civil restraint order is not limited in this way (see and compare 3 CPD.3 para 3.2(1) and 3CPD.4 para 4.2(1)). The circumstances in which an extended civil restraint order may be made are where “a party has persistently issued claims or made applications which are totally without merit.” (3CPD.3 para 3.1). The circumstances in which a general civil restraint order may be made are “where, despite the existence of an extended civil restraint order, the party against whom the order is made persists in issuing claims or making applications which are totally without merit.” (3CPD.4 para 4.1). Guidance to the reasoning behind and the application of these provisions has been given in a practice note in the case of Bahamjee v Forsdick and others (2003) EWCA Civ 1113 in the following terms at para 43:
“The court’s experience now shows that an even wider form of order may be necessary for a particularly rare type of litigant. A civil restraint order and an extended civil restraint order can only restrain a litigant in the context of the litigation he is currently conducting and other litigation to like effect….
44. It is now clear that it may be necessary, because a litigant’s vexatious activities are proving to be such a drain on the resources of the court, for a judge of the court to make an order restraining him from commencing any action or making any application in that court without the prior permission of the court…. The need for such a power partly stems from the nuisance identified by Laws LJ in Attorney General v Ebert (unreported), 7 July 2000 para 53 as justifying a section 42 order: “any argument as to whether a particular fresh process is or is not caught by an extant Grepe v Loam order is avoided….I attach no little importance to this aspect. If Mr Ebery’s obsession deepens,….as I fear it may, there is every possible that he may seek to formulate proceedings in such a way as to raise at any rate an argument to the effect that he does not need Grepe v Loam leave”.
The guidance in this respect is summarised at para 53(6)
“If an extended civil restraint order is found not to provide the necessary curb on a litigant’s vexatious conduct, a judge of the High Court or a designated civil judge (or his deputy in the county court) should consider whether the time has come to make a general civil restraint order against him”
The power in the High Court to make such a general restraint order applies not only in respect of proceedings in the High Court but also in the County Court (Ashok Mahajan v Department of Constitutional Affairs (2004) EWCA Civ 946 at para 58).
It is clear that the imposition of a general civil restraint order operates as part of a step by step process of control of litigants where their vexatious behaviour requires that the court take these steps in order to protect itself and other litigants. Accordingly, in considering whether a general civil restraint order is required it is necessary to focus on the conduct of Mr Carroll since the extended civil restraint order was imposed in order to see whether something further than that order is required. In this context I take as read, therefore, that, prior to the order of 20 November 2003 by Mr Justice Roderick Evans imposing the extended civil restraint order, Mr Carroll’s conduct was sufficient to justify the making of that order. I do not, however, have regard to that prior conduct, beyond making that assumption, in considering whether now to impose a general civil restraint order. I therefore, to that extent, have not taken into account for this purpose the material which Mrs Kynaston placed before me reflecting what she says to be vexatious behaviour by Mr Carroll pre-dating that order in November 2003.
Mrs Kynaston makes her application on two grounds namely that Mr Carroll has, she contends, disregarded the extended civil restraint order procedures and has persisted in making applications entirely devoid of merit. As to the first she sets out her contentions in paragraph 6 of her statement in support of her application. As to applications without merit made since the extended civil restraint order she sets those out in paragraph 11 of that document. I consider these paragraphs in turn. She also relies on matters set out by her in paragraph 8 of that statement.
Before dealing with the detailed contentions in paragraph 6 I first summarise the effect of the extended civil restraint order and identify certain general issues which Mr Carroll has raised in respect of this part of the case.
The order sets out the procedures by which Mr Carroll was to seek permission to take any of the relevant steps. First he had to apply for permission in writing to Master Rose and his application would be dealt with on paper alone (para 2). If Mr Carroll wished to appeal any decision of Master Rose made in accordance with that paragraph he had to seek permission in turn from Master Rose, and thereafter Mr Justice Gray (para. 3). In each case the application for permission to appeal had to be in writing and would be considered on paper alone. A further provision, (para 6), provided that Mr Carroll was not to apply for permission in accordance with paragraph 2 or paragraph 3 without first giving notice in writing to Mrs Kynaston six working days before any such application and, if she replied, to send her response with any application for permission under paragraph 2 or 3. Thus the procedure required Mr Carroll first to notify Mrs Kynaston in writing and then to apply in writing for permission from Master Rose or Mr Justice Gray and in either case to accompany that written application with Mrs Kynaston’s written response ( if any) to his prior notice.
Mr Carroll in his response to Mrs Kynaston’s complaint set out in paragraph 6 of her statement has raised some general issues with which it is convenient to deal before turning to the individual paragraphs. The first issue arises in connection with paragraph 6.1, 6.2 and 6.4. In connection with these particular paragraphs the general point he makes is that the proceedings in connection with which he took the various steps complained of are not covered by the order of 20 November 2003 because they were proceedings in “the Supreme Costs Court under reference number SCCO03/A/484”. In my judgment, as these were matters concerning costs in certain of the actions the numbers of which are contained in the extended civil restraint order, those matters were caught by the terms of the order as they were “in, out of, or concerning, or relating to, or touching upon” those proceedings. In my judgment, therefore, Mr Carroll is wrong in his assertion that these steps were not caught by the extended civil restraint order.
The second point of general application concerns the complaints made under paragraphs 6.2, 6.3, 6.5, 6.7, 6.9, 6.10, 6.11, and 6.12. Mr Carroll says that for Mrs Kynaston to complain of these matters is vexatious and embarrassing in that it constitutes re-litigation of matters already dealt with by the court. He justifies this contention by reference to a document filed by Mrs Kynaston dated 10 December 2004. That is a document entitled “Breach of terms of Civil Restraint Order (20 November 03) and of Suspended Sentence (12 Dec 03)”. He says that this document was before the court on 20 December 2004. Mr Carroll is undoubtedly correct in saying that there was before the court on 20 December 2004 such a document which cites as matters of complaint her contention that in various respects he had evaded the terms of the civil restraint order. These matters of complaint are in substance the matters upon which she now relies in this application in the numbered sub paragraphs of paragraph 6 to which I have referred. On 20 December 2004 Mr Justice Gray was dealing with a number of applications brought by Mrs Kynaston in connection with litigation including litigation between Mr Carroll and herself. It appears that the document to which I have referred was sought to be relied upon in connection with the application which was dealt with by Mr Justice Gray at para 3 of his judgment. He said in that paragraph as follows:
“The second application relates to actions numbered HQ03X00127 and HQ03X00480 and HQ03X03185. In these three actions Mr Carroll is the claimant and Mrs Kynaston is the defendant. There are various causes of action. Mr Kynaston seeks an order dismissing the actions on the ground that they are an abuse of the process of the court having been brought for an improper collateral purpose. I pointed out to Mrs Kynaston in the course of argument that since Mr Carroll is, by virtue of the order of Roderick Evans J. dated 20 November 2003, subject to a civil restraint order which will not expire until November 2005, he will not in any event be able to take any step in any of these actions until the expiry of the civil restraint order in November 2005. In these circumstances, Mrs Kynaston agreed that the sensible course for her is not to pursue the application to dismiss as this stage, but rather to wait until November 2005 and see whether, at that point in time, Mr Carroll takes any further steps. If he does she can then, if so advised, renew the present application. I therefore make no order on this application. ”
In my judgment it is clear that some of the matters now complained of, whilst they were raised in the context of that application, were not pursued and that application as yet remains undealt with. In any event the application which is made today is for a different form of relief. I see no basis whatsoever in Mr Carroll’s contention that Mrs Kynaston is not permitted to have the court consider these complaints merely because they were mentioned in support of a different application which, in the event, was not concluded on 20 December 2004. I therefore reject his point of general application insofar as it applies to these various numbered sub-paragraphs of paragraph 6.
A third point of general application is raised in connection with the complaints made in certain of the sub-paragraphs of paragraph 6. It appears to me that the point may be apposite to the complaints made under 6.1, 6.8, 6.9, and 6.10. The point is that the extended civil restraint order only requires Mr Carroll to go through the procedure for first obtaining permission before making any application in connection with steps taken in the High Court or the County Court. It does not apply to steps he may take in the Court of Appeal. The matters complained of in these particular sub-paragraphs appear to relate to proceedings in the Court of Appeal. Accordingly, it is said, whatever else may be the consequence of those steps being taken, they do not constitute a breach of the extended civil restraint order. In my judgment that analysis is correct. Accordingly, insofar as the matters of complaint in these sub-paragraphs concern steps taken in the Court of Appeal or in proceedings before the Court of Appeal they cannot constitute a breach of the extended civil restraint order.
I now turn to deal with the specific complaints made an enumerated in paragraph 6.
The complaint is that on 19 January 2004 at an assessment of costs hearing before costs Master Seager-Berry, Mr Carroll served a lever arch file of documents comprising his notice of appeal against “this order”. It is said that Mr Carroll did not give Mrs Kynaston notice that he intended to appeal nor had he applied to Master Rose to do so. It is said that the appeal was dismissed on 17 March 2004. As I understand this complaint it concerns a file of documents in support of an unsuccessful appeal which Mr Carroll made to the Court of Appeal against the order of Mr Justice Roderick Evans. If that be the case then the step complained of was not a step which was covered by the extended civil restraint order, even though the occasion for the step being taken was during the hearing of a matter before the costs Master. I therefore conclude that Mr Carroll was not in breach of the extended civil restraint order in this respect.
This complaint is that on 26 January 2004, in breach of paragraphs 2 and 6 of the order, without notice to Mrs Kynaston and without applying for permission Mr Carroll made an application to Master Seagar-Berry by letter to “revisit” the assessment of costs order made against him. This contention is supported by a letter of 26 January 2004. On its face this letter does concern one of the relevant claims as it is headed amongst other things “Claim number HQ02X00511 Carroll v Kynaston”. The terms of its last paragraph, amongst other things, says “I would invite Master Seagar Berry to revisit this matter as his findings are unsafe at best and there is at least the hint of bias entirely due no doubt to the selective, one sided and irrelevant documents produced by Mrs Kynaston”. In my judgment this is no, as Mr Carroll contends, a written application for permission to seek a reconsideration by Master Seagar-Berry of his previous order but it is an application that he do so made by letter. It is not contended by Mr Carroll that he had given Mrs Kynaston due notice of any such application whether it be for permission or not. I conclude, therefore, that this step was governed by the extended civil restraint order. The procedure was not complied with and therefore Mr Carroll is in breach of that order.
This complaint is that on 3 February 2004 without Mrs Kynaston’s knowledge and in breach of paragraph 6 of the order Mr Carroll made an application by letter for committal and damages and costs against her. In support of this contention she encloses a letter dated 3 February 2004 from Mr Carroll to Master Rose. It is said to be in connection with Claim number HQ02X03591 and it reads:
“I am writing to request leave to commence an application for the committal of Christine Kynaston for contempt of court.”
In my judgment this letter is not an application for contempt in itself but an application for permission to apply for such an order. The enclosure of the document which is entitled “a draft application” emphasises the fact that it was not an application in itself. Nonetheless, if Mrs Kynaston is correct, that she was not given notice of Mr Carroll’s intention to apply for permission, then he was in breach of the extended civil complaint procedure. Mr Carroll contends that he was not in breach because he says that Mrs Kynaston was forewarned of his intent by way of a letter dated 24 January 2004. No such letter is or has been produced to the court nor is it referred to in the letter to Master Rose. Mrs Kynaston says that she received no such letter and that is the gist of her complaint. Mr Carroll sought to present to me, in the course of the argument, a number of post office documents to show that certain documentation had been delivered and signed for by or on behalf of Mrs Kynaston various occasions. He was not in a position to produce any such evidence in respect of this alleged letter. In those circumstances I am satisfied that Mrs Kynaston is correct and that on this occasion there was a breach of the extended civil restraint order procedure in that Mr Carroll did not give her prior notice of his applying for permission to apply for committal for contempt. I therefore conclude that he was in breach of the extended civil restraint order in the manner described in paragraph 6.3.
The complaint in this sub-paragraph is that on 3 February 2004 he sought leave to appeal the order of costs Master Seager-Berry dated 19 January 2004 in Claim No HQ03X00511. Mrs Kynaston’s complaint is that although Mr Carroll represented that he had given her notice of the application by letter of 18 January 2004 and had copied his application for permission to her Mr Carroll had done neither. The documentation before me comprises a letter to the Master’s support unit dated 3 February 2004 which is an application for leave and refers to a letter written to Mrs Kynasaton. There is attached to that letter a copy of a letter dated 18 January 2004 which purports to be to Mrs Kynaston. Mr Carroll’s contention is that, as it concerned an appeal against a costs order, it was not governed by the extended civil restraint order. I have already indicated that I reject this contention. In any event he claims that he did forewarn Mrs Kynaston by sending her the letter of 18 January. I have concluded under 6.3 that Mr Carroll did not forewarn Mrs Kynaston in respect of that application for leave. My reasons for doing so were his failure to produce a copy of the letter of 24 January and the fact that no such letter is referred to in the letter of 3 February 2004 to the Master’s support unit. By way of contrast his letter of 3 February 2004 to the Master’s support unit the subject of this complaint does refer to such a letter and encloses a copy of it. There is no evidence presented by Mr Carroll in the form of any acknowledgement from the post office of that letter being signed for. Nonetheless, in my judgment, Mrs Kynaston has not discharged the onus of proof which is upon her to demonstrate positively that Mr Carroll did not send to her a letter dated 18 January. In those circumstances I am not prepared to accept that a breach such as is complained of in 6.4 has been proved.
This complaint is that on 17 March 2004 without notice to her and in breach of paragraph 6 of the order Mr Carroll sought leave to bring an application to pursue part of claim HQ03X03185 and to commence an action for defamation against a Mr Ian Lee. Mr Ian Lee was formerly a barrister’s clerk of 4 Kings Bench Walk and Mrs Kynaston says that the action sought to be commenced against him was by reason of his association with Mrs Kynaston. This permission was refused on 13 March 2005. The letter from Mr Carroll dated 17 March 2004 to Master Turner seeks leave both to bring an application in respect of that numbered claim, which is a claim covered by the terms of the extended civil restraint order, and for leave to commence an action in defamation against Ian Lee whom he describes as having been “involved with Mrs Kynaston with who he conspired to attack and defame me on public internet sites because of my interest in Judica Ltd”. Mr Carroll does not seek to contest the breach of the extended civil restraint order in respect of the application in respect of the numbered claim. His argument is that the complaint made about it is vexatious by reason of it being a re-litigation of matters before the court on 20 December 2004. I have already indicated that in my judgment this is not a good argument. I therefore find that he is in breach to that extent. Insofar as he applied for leave to commence proceedings in defamation against Ian Lee, Mr Carroll denied having sought leave to commence because of his association with the defendant. He says that he sought leave to commence out of an abundance of caution on the footing that what Mr Ian Lee had written was highly offensive and defamatory in any event.
This particular complaint raises in an acute form the question which I will ultimately have to determine on this application. It is clear that Mr Carroll is minded to commence and proceed against persons other than Mrs Kynaston. It is equally clear that in his own mind, and in his communication with the court he is linking this potential defendant with Mrs Kynaston. The question therefore arises in an acute form whether such an application would fall within the terms of the extended civil restraint order presently in place. One of the reasons for making a general civil restraint order is to avoid the need for deciding whether or not particular proceedings to be brought against third parties are covered by the extended civil restraint order. In my judgment it is not within its terms. That order only prevents him taking steps “against the claimant and/or her legal or other representatives. Mr Lee falls into neither category and so I find the complaint made under paragraph 6.5 proved only on the first count.
This complaint is that on 15 July 2004 Mr Carroll made a further committal application against Mrs Kynaston without her knowledge or first seeking leave from Master Rose. The terms of the letter of 15 July 2004 from Mr Carroll to the Queens Bench Listing Office make it clear, in my judgment, that this is correspondence concerning an application which is being made and not just an application for permission. In the course of that letter he says:-
“As these papers have been properly and duly filed at court I should be grateful if my application could now be dealt with expeditiously”.
There is no suggestion in this letter that Mrs Kynaston has been formally notified or that any attempt has been made to obtain the permission of Master Rose. Mr Carroll seeks to contest this by suggesting that this was simply a response to directions issued by Mr Justice Gray following a case management conference. In my judgment this is no answer at all to the nub of the complaint made under this paragraph and accordingly I find that he was in breach of the extended civil restraint order as claimed in 6.6.
This complaint is that prior to a hearing before Mr Justice Beatson in breach of paragraphs 2 and 6 of the order Mr Carroll applied to Mr Justice Beatson and was given permission to issue a witness summons for a witness to appear at the hearing on 19 August 2004. This matter was referred to by Mr Justice Beatson in his judgment at paragraph 11 in which he says:
“Mr Carroll applied and was given permission to witness summons to Mr Fuende (sic). In the event Mrs Kynaston indicated to the court office before the hearing that while drawing these matters to the attention of the court, she was not pursuing them and she did not refer to them in her oral submissions.”
Mr Carroll in his response contends that Mrs Kynaston was aware of the request to call Mr Fluendy. He relies on the passage referred to in Mr Justice Beatson’s judgment as evidencing her awareness of this matter. In addition to that he raises the point that this was a matter complained of in connection with the application made on 20 December 2004. In my judgment this is a complaint which has been proved. However the circumstances in which it arose make it a nominal breach only of the extended civil restraint order and, in my judgment, it adds virtually nothing to the application which I am concerned with.
6.9. 6.10. Each of these complaints concerns applications before the Court of Appeal. I have already indicated that in my judgment these matters are not covered by the extended civil restraint order and accordingly I do not find any breach of that order in respect of any of these three matters.
This complaint is that on 11 October 2004 in breach of the order Mr Carroll took the first steps in proceedings for defamation against her former solicitors Ben Williams and McColl and against one of her former solicitors David Price by serving a formal letter before action on each of them without notice to her. She says that this is governed by the order of 20 November 2003 by reason of being the taking of “any steps (including for the avoidance of doubt the issuing of any new proceedings in whatever form)……against the claimant and/or her legal or other representatives in or out of or concerning any matters involving or relating to or touching upon or leading to proceedings”. Mrs Kynaston relies on letters dated 11 October 2004 respectively to these two firms of solicitors. Once again this contention raises in an acute form the problem already referred to namely that of litigation being commenced or threatened against third parties and the question whether they are sufficiently connected to the existing proceedings so as to fall within the ambit of an extended civil restraint order. It is clear that the subject matter of the alleged cause of action is in some way linked to their having acted for Mrs Kynaston in connection with these various pieces of litigation. In my judgment it is by no means easy to determine whether it falls within the extended civil restraint order. . Mr Carroll denies at some length that these matters were connected with the proceedings and in addition says that this is a vexatious re-litigation of matters raised before the court on 20 December 2004. I have already rejected the latter of these contentions. I am clear that the action does have a sufficient connection with the relevant litigation so as potentially to fall within the terms of the order. What is more difficult is whether taking of “any step” must amount to at least commencing an action or whether it covers a formal pre-action step such as sending a formal letter before action. With some hesitation I have concluded that it does fall within the terms of the order and so Mr Carroll was in breach. In any event it is a highly relevant matter for consideration in whether to make the general civil restraint order sought
This concerns a letter of 13 October 2004 sent to the senior master. Within it Mr Carroll, he says out of an abundance of caution, seeks leave to commence proceedings against Ben Williams and McColl for the torts of malicious falsehood, harassment and conspiracy to injure him by supplying Mrs Kynaston with false information in an attempt to manipulate and pervert due legal process in order to cause him damage and distress. Mr Carroll denies that this letter was governed by the extended civil restraint order. He says that in any event he wrote to Mrs Kynaston on 5 October 2004 informing her that he was going to take that step. He does not provide a copy of that letter nor does he provide any evidence of it having been delivered or posted. Furthermore there is no reference in the letter to the senior master of any such letter of 5 October 2004. In addition he relies on the fact that this is allegedly re-litigation of matters before the court on 20 December 2004. In my judgment the letter seeking leave to commence these proceedings is, by its terms, so closely linked with the litigation the subject of the extended civil restraint order that it was governed by that order. I accept that Mrs Kynaston has established that no notification was given to her of Mr Carroll making this application and accordingly I find a breach in this respect of the civil restraint order.
This is a complaint that on 11 January 2005 Mr Carroll applied to Master Rose by letter, without notice to her, for leave to write to Mr Justice Gray in terms of a letter dated 10 January 2005. That letter set out at some length Mr Carroll’s concerns about a number of subjects. It concluded by asking Mr Justice Gray to consider whether it was appropriate, amongst other things, to “(3) make a costs order in relation to the hearing of 20 December 2004; (4)…make a civil restraint order against Mrs Christine Inga Kynaston;…(6) whether the threats detailed above amounted to contempt of court and of undertaking.” Mr Carroll admits sending the letter. He does not contest the contention that he failed to notify Mrs Kynaston that he was doing so. Accordingly in my judgment he was in breach of the extended civil restraint order as complained of in 6.13.
This complaint is that on 28 January 2005 Mr Carroll made an application by letter to Master Rose to amend his statement of defence in HQ02X03192. It is said that in breach of paragraph 6 of the order he failed to comply with the procedure for giving her notice. Mrs Kynaston observes that Mr Carroll has now complied with the order of Master Rose requiring him to rectify the breach. Mr Carroll does not address this complaint in terms in his witness statement. I find this particular complaint of breach of the extended civil restraint order proved.
I now turn to the complaint that Mr Carroll has made applications without merit since the extended civil restraint order was made. These are set out in paragraph 11 of Mrs Kynaston’s witness statement.
The first application was for permission to appeal against the extended civil restraint order. That application was rejected on 17 March 2004 by Lord Justice May. Mr Carroll does not contest these facts.
This paragraph complains of him making unmeritorious and pointless applications to cost masters seeking to re-visit matters which had already been the subject of orders made by various costs masters. Mr Carroll does not contest the essence of this complaint.
The essence of this complaint is that on 3 February 2004 Mr Carroll applied to Master Rose for leave to bring an application for committal against Mrs Kynaston. On 26 March 2004 and again on 8 April 2004 Master Turner refused him to leave to bring that and various other applications. On 16 May 2004 Mr Carroll sent his application for committal to Mr Justice Gage. He then sent the application to Mr Justice Gray on 15 July 2004. On 10 January 2005 he applied to Master Rose for leave to apply by letter to Mr Justice Gray again applying for contempt of court proceedings to be considered against her. Mr Carroll indicates, and I have some sympathy with him, that the various sub-paragraphs of 11.3 amount to a discursive narrative account and do not focus on the real issue in the same way as the various sub-paragraphs in paragraph 6 have done. Nonetheless, it is clear to me from reading both this sub-paragraph and Mr Carroll’s response that he does not dispute the essence of the matter which is that on a number of occasions during that period he did make applications to commit Mrs Kynaston for contempt none of which got anywhere at all.
Mrs Kynaston complains that on 17 March 2004 Mr Carroll made an application by letter to Master Turner for leave, amongst other matters, to make an application to pursue parts of HQ03X03185. This application does not appear to have been acceded to although it is fair to point out that eventually in August 2004 Mr Justice Beatson did deal with an application in respect of this claim and did give Mrs Kynaston permission to take steps in relation to it and ordered that it be listed with others before Mr Justice Tugenhadt or Mr Justice Gray in September 2004 or soon thereafter. In conclusion, therefore, in my judgment this is not a particularly strong complaint made by Mrs Kynaston in support of this application.
In this sub-paragraph Mrs Kynaston makes complaint about the attempts to obtain permission to commence proceedings against Ian Lee. As I have indicated above in my judgment this is a significant matter in forming the question whether a general civil restraint order should be granted. This is not because of any particular lack of merit in the underlying complaint as I am not in a position to form any such view. Rather it is evidence that Mr. Carroll, has in his pursuit of his campaign of litigation against Mrs Kynaston, sought to drag in others.
This is a complaint concerning Mr Carroll’s applications to call Mr Fluendy made respectively to Mr Justice Beatson and the Court of Appeal. In respect of the application before Mr Justice Beatson the fact is that Mr Justice Beatson acceded to his application. Mr Carroll’s application to the Court of Appeal was refused on the basis that he should first obtain a sworn statement from Mr Fluendy before applying for permission to call him in the Court of Appeal. Mr Carroll does not take issue with what happened before the Court of Appeal and that his application was a fruitless one.
This complaint is that on 5 October 2004, at a hearing for leave to appeal before Lord Justice Clarke and Lord Justice Neuberger, Mr Carroll made an application for a civil restraint order against Mrs Kynaston. The Court of Appeal refused that application together with other applications on that occasion which were also refused. Of course this was not a breach of the extended civil restraint order but nonetheless is a matter upon which I am entitled to have regard in considering the general civil restraint order. In addition, under this sub-paragraph, complaint is made of the application made by Mr Carroll on 10 January 2005 to Master Rose asking for leave to send an application to Mr Justice Gray in which he raises the question of a civil restraint order being granted against her. I have already dealt with this in connection with paragraph 6 and I have concluded that it did constitute a breach of his extended civil restraint order. It was also a fruitless application.
This concerns the application for permission to commence proceedings against Mrs Kynaston’s former solicitors. Mr Carroll admits that he did make this application. I have already considered it in connection with paragraph 6 above and I return to it below.
The complaint in this sub-paragraph is that Mr Carroll wrote to Mr Justice Gray on 10 January 2005 seeking costs in respect of a case management conference held on 20 December 2004. Mrs Kynaston says that Mr Carroll had made no application for costs at the hearing of 20 December and no order for costs was made. She contends that the application was, consequently, entirely without merit. Mr Carroll accepts that no order for costs was made following the CMC but says it was because the judge overlooked the matter by virtue of the way in which Mrs Kynaston had conducted herself after the judgment. In my judgment this was a fruitless application for Mr Carroll to have made.
In addition to the matters referred to in paragraph 11 of her witness statement Mrs Kynaston relies on a letter referred to in paragraph 8. That was a letter of 16 March 2005 from Master Rose to Mr Carroll. That letter was in response to a letter sent by Mr Carroll to the court dated 10 March 2005 under heading of Case Number HQ02X03192. That letter was accompanied by copies of a series of 11 letters one of which was from the court to Mr Carroll, one of which was from Mr Carroll to Mrs Kynaston and the remainder of which were from Mr Carroll to the court. That letter says as follows:-
“Master Rose has also considered all of the requests made by you, as contained in the letters which were attached to your letter dated 10 March 2005, for permission to make application or to takes steps within the meaning of paragraph 1 of the order of the court against you dated 20 November 2003. In Master Rose’s judgment none of those requests (save for one exception) did you comply with the provision of paragraph 6 of the order dated 20 November 2003. Each of those requests (with that exception) is accordingly refused, whether or not the same have been specifically refused heretofore….The exception to which I have referred relates to your request made by letter to the court dated 3 February 2004 by which you request leave to commence an application to appeal the order of Master Seager-Berry dated 16 January 2004. Master Rose has read the copy supplied by you of your letter to Mrs Kynaston dated 18 January 2004. Master Rose treats your letter of 3 February as an application for permission pursuant to paragraph 2 of the order dated 20 November 2003. In order to enable Master Rose to consider such application would you please provide a copy of the order of Master Seager-Berry.”
In his response to Mrs Kynaston’s application Mr Carroll has listed a series of applications which, he says, Mrs Kynaston has made and which, he says, have all been refused since the civil restraint order was imposed on 20 November 2003. There are 16 such applications or notices of appeal from 12 December 2003 to 15 December 2004. Of these he has stated that 13 of them were refused. This may be so. In my judgment it does indicate that Mrs Kynaston is also prone to a somewhat obsessive approach to this litigation. In that sense it is material which underlines the merit of the permanent stay upon which I have already ruled. However, the application I am now considering is made by Mrs Kynaston for a general civil restraint order against Mr Carroll. The focus of my consideration must, therefore, be his conduct in the litigation since the extended C.R.O. was put in place. In my judgment, having regard to the number of applications which Mr Carroll has made, their lack of merit as reflected in their refusal time and again and to the fact that in some cases he has acted in breach of the extended civil restraint order I am satisfied that Mr Carroll has now become a litigant in respect of whom a general civil restraint order is now appropriate. I am particularly swayed in making this judgment by the applications which he has made in respect of third parties to the main litigation – Ian Lee and the former solicitors of Mrs Kynaston. I perceive that Mr Carroll’s litigious activities are now spilling over from his litigation with Mrs Kynaston so as to affect third parties. Furthermore, the issue whether the involvement of third parties falls within the terms of the extended civil restraint order is by no means a straightforward one. The need to impose a general civil restraint order stems, in part, from the nuisance identified by Lord Justice Laws in Attorney General v Ebert in the passage referred to above. In short there is no indication that the extended civil restraint order has acted as an effective brake on Mr Carroll’s activities. Furthermore, these activities have now extended beyond Mrs Kynaston as their target to the extent that the protection given to the court and to potential litigants by the extended civil restraint order is no longer sufficient and the imposition of a general civil restraint order is now justified.
Accordingly I grant the application sought and impose a general civil restraint order upon Mr Carroll which will run for a period of two years from the date of this judgment. It will be drawn in similar terms to the extended CRO made on 20 November 2003 in the sense that it will apply to Mr Carroll whether personally or through any servant or agent.
It is very much to be hoped that the combination of the general civil restraint order and the permanent stay on these three claims may effectively put a brake on this deplorable litigation.
COSTS
I indicated to the parties that I would consider the matter of costs when I delivered my reserved judgment. What I now say, therefore, is the order in respect of costs which I am minded to make but it is subject to any representations which I may receive either in written or orally from either or both of the parties. I emphasise that it is not compulsory for either of them to make any such comment if they are content to make none.
I have decided in Mrs Kynaston’s favour on both of the applications which she has made. The bulk of the argument before me concerned the application in respect of the general civil restraint order which Mr Carroll opposed. Virtually no time whatever was taken up with the matter of the permanent stay upon which Mr Carroll and Mrs Kynaston agreed. In my judgment, therefore, Mrs Kynaston is entitled to her costs having succeeded before me. On the other hand, as has been pointed out by Mr Carroll, there is a very substantial amount of duplication between the material presented to me for this application and the material presented to the court on 20 December 2004. Accordingly in making a summary assessment of her costs I do not accept that she is entitled to the costs incurred in preparing for the application as if it were starting from scratch. The claim for costs which she makes is a relatively modest one namely £789.93p. In so doing she charges out her time at the appropriate rate and her costs for photocopying are similarly at a modest rate. Having regard to this element of duplication in the preparation in my judgment the appropriate summary assessment for the costs which Mr Carroll should pay is £600. That is the order for costs I am minded to make subject to anything which the parties may say to me in writing or orally.