Nowak v The Nursing and Midwifery Council & Anor (Rev 1)

On 8 May 2013, sitting in the Interim Applications Court (Court 37), I heard two applications made by the claimant in this action, Przemyslaw Nowak, for interim relief. At the time when the applications were made Mr Nowak’s claim had been struck out and judgment entered against him. However, this had not deterred him from seeking to pursue his claim. I dismissed both applications as totally without merit. As required by rule 23.12 of the Civil Procedure Rules, I considered at that time whether it was appropriate to make a civil restraint order against Mr Nowak and provisionally concluded that it was. A further hearing was arranged to give Mr Nowak and the other parties to the action an opportunity to make representations as to whether a civil restraint order should be made and, if so, in what form.

This is my judgment following that further hearing and consideration of additional written submissions made by Mr Nowak.

Mr Nowak is a nurse registered with the first defendant (“the NMC”) and previously employed by the second defendant (“the Trust”). He was dismissed by the Trust in January 2012 and is currently the subject of disciplinary proceedings before the Conduct and Competence Committee of the NMC.

Mr Nowak began this action against the NMC and the Trust on 4 October 2012 (although he did not serve the claim form until 5 February 2013). The claim form alleged breaches of the Data Protection Act 1998 and the Protection from Harassment Act 1997. Particulars of claim have never been served. It is apparent, however, from various documents which have been produced by Mr Nowak in the course of the proceedings, including draft particulars of claim, that Mr Nowak claims to have suffered bullying and harassment at work, originally from two individuals who were his line managers. This, he says, caused him to fall sick and take sick leave. Mr Nowak asserts that he raised complaints and grievances about his treatment which the Trust failed to investigate. He alleges that he was dismissed from his employment by the Trust ostensibly on account of incapability due to his poor health but in reality because he had raised grievances and a whistle blowing report against senior members of staff.

Following his dismissal, the Trust referred to the NMC allegations that Mr Nowak had fraudulently claimed sick pay and, while on sick leave, had participated in a training programme at De Montfort University without permission from the Trust. I understand that an investigation by the NMC concluded that there was a case to answer and that disciplinary proceedings against Mr Nowak are currently pending before the NMC’s Conduct and Competence Committee.

Mr Nowak alleges that his dismissal and the referral of allegations to the NMC are part of a continued course of harassment of him by employees of the Trust, who have deliberately provided false information to the NMC and encouraged a flawed disciplinary case against him. He also alleges that the disciplinary proceedings have been brought as a result of the misuse of his personal data and/or a failure to keep accurate records and/or the destruction and falsification of documents by the Trust and the NMC.

As mentioned, Mr Nowak started proceedings against the NMC and the Trust on 4 October 2012. On 12 December 2012 Mr Nowak applied for disclosure under CPR rule 31.16, which applies where an application for disclosure is made before proceedings have started. The disclosure sought was wide-ranging. It was said to be necessary to enable Mr Nowak to plead his case fully by discovering who the individuals were who had allegedly blocked his grievance process, brought about his dismissal, deliberately provided inaccurate information to the NMC and encouraged a flawed case of misconduct against him. (The draft particulars of claim, which were produced at the hearing of the application, listed 21 people for whose “bullying and harassment actions” the Trust was said to be vicariously responsible, starting with its Chair and Chief Executive.)

Although he had already been provided with some 11 lever arch files of documents by the defendants pursuant to five requests made under the Data Protection Act and Freedom of Information Act, Mr Nowak complained that much of this documentation had been heavily redacted. He also contended that a large amount of further documentation had been withheld and ought to be disclosed.

The application for disclosure was heard by Master Kay QC on 4 and 5 February 2013. At this hearing Mr Nowak was represented by counsel. (He has since been acting in person with the assistance of a friend, Mr Bruce Tomlinson.)

The Master dismissed the application as totally without merit. His reasons were set out in a written judgment. In summary, they were that:

the application had been made after proceedings had started and was therefore procedurally misconceived;

Mr Nowak had failed to provide sufficient evidence to support his application;

the vast majority of documents sought were irrelevant, and disclosure of them was not desirable, reasonably necessary or even useful;

making an order for disclosure before statements of case had been served would put the defendants to a large and wholly unjustified and disproportionate expense.

By his order dated 5 February 2013, Master Kay also gave case management directions which included (at paragraph 3) a direction that Mr Nowak serve his particulars of claim on the defendants by 4pm on 22 February 2013.

Mr Nowak did not serve particulars of claim as required by that order (and has never done so). Instead, on 22 February 2013 he issued an application for a stay of the proceedings on the ground that he intended to appeal against the order of 5 February 2013 and to allege that evidence served by the defendants in opposition to his disclosure application and representations made by the defendants’ counsel at the hearing on 4 and 5 February 2013 had been false.

Mr Nowak filed a notice of appeal against the order of 5 February 2013 on 26 February 2013. It is convenient to interrupt the chronological narrative at this point to refer to the subsequent history of this appeal.

The grounds of appeal alleged that the two witness statements served by the defendants in opposition to Mr Nowak’s application for disclosure “were premised upon the fabrication of events and facts.” The two witness statements were a statement of Mark Hudson on behalf of the Trust and a statement of Christine Simmons on behalf of the NMC. Mr Nowak asserted that the statement of Mr Hudson in particular had contained “egregious falsehoods”. No particulars were given of these allegations when the notice of appeal was filed. It was said, however, that the grounds of appeal would be expanded and properly particularised within 14 days and that, when this was done, each of the alleged falsehoods would be specified and evidence of its falsity provided.

In fact, Mr Nowak did not provide such particulars within 14 days, and has never done so. On 27 March 2013 he lodged with the court two appeal bundles which were said to show that the defendants’ witness statements were “documents of wilful falsity”. Nowhere in these bundles, however, did Mr Nowak specify any facts capable of supporting the allegation that either document contained any statement which the witness who made it did not believe to be true.

A submission at the start of the first appeal bundle alleged that the statement of Mr Hudson on behalf of the Trust “is a construction of wilful falsity and is challenged within the bundle attached.” Neither in the submission nor anywhere in the attached bundle, however, did Mr Nowak identify any specific statement made by Mr Hudson which was alleged to have been wilfully false. The pretext given for not condescending to such particulars was that Mr Hudson’s statement was said to be:

The second appeal bundle related to the witness statement of Christine Simmons, who is employed as a Records Manager by the NMC. The only purpose of her witness statement was to exhibit two bundles of documents which the NMC had previously provided to Mr Nowak. Ms Simmons explained that she was aware, in one case from a letter contained in the NMC’s document management system and in the other case from a colleague, that the two bundles of documents had been provided but said that in each case she had had no personal involvement in the production of the bundle or its service on Mr Nowak. Ms Simmons also explained that she was (when she made her witness statement on 29 January 2013) in the course of processing a subject access request under the Data Protection Act from Mr Nowak and would respond to this by 15 February 2013.

It is difficult to imagine what possible basis there could be for alleging that anything said by Ms Simmons in her witness statement was wilfully false. In a submission at the start of his second appeal bundle, however, Mr Nowak maintained that allegation. Mr Nowak did not dispute that he had been provided previously with the documents exhibited by Ms Simmons. His complaint – which the documentation in his second appeal bundle was said to support – was that he ought to have been provided with further documents, including some which were subsequently disclosed on 15 February 2013 in response to his subject access request. Even if there was any substance in that complaint, however, it gave no ground for alleging that anything said by Ms Simmons in her witness statement was false, let alone dishonest. Ms Simmons had done no more than identify (on information and belief) what documents had been provided to Mr Nowak and also explained that she had no personal involvement in the production of the relevant bundles. Mr Nowak nevertheless saw fit to accuse Ms Simmons of having “committed an act of perjury” when she signed the statement of truth at the end of her witness statement. That, like the many other allegations of criminal conduct made by Mr Nowak during these proceedings, was a completely unfounded and scurrilous allegation which ought never to have been made.

On 3 May 2013 the documents lodged by Mr Nowak in support of his appeal were considered by Mr Justice Bean. By an order dated 3 May 2013, Mr Justice Bean refused permission to appeal and certified that the proposed appeal was wholly without merit.

I return to the position in late February 2013 when the notice of appeal was filed. Mr Nowak was at that time in default of the direction given by Master Kay requiring him to serve his particulars of claim by 22 February 2013. On 4 March 2013 the Trust applied to have the claim struck out on the basis of Mr Nowak’s failure to comply with that direction. In a witness statement dated 27 February 2013 in support of that application, Ms Lucy Grivell, a solicitor at DAC Beachcroft who are the solicitors acting for the Trust, stated that during the period between 5 and 22 February 2013 when Mr Nowak was expected to be working on finalising his particulars of claim, she had received or been copied into a large volume of correspondence from him. This included letters to the Attorney General and the Solicitors Regulation Authority, as well as to her firm, alleging that the Trust’s solicitors and counsel had knowingly made false statements to the court in opposing his disclosure application. These communications indicated that Mr Nowak was planning to initiate committal proceedings and also claimed to be working on a dedicated website and planning a series of press conferences to give wider publicity to his complaints. There was nothing to suggest that he had been devoting any attention to the particulars of claim.

On 5 March 2013 Master Kay made an order of the court’s own motion which was sent to the parties. Paragraph 1 of the order provided:

On 13 March 2013 Mr Nowak issued an application for Master Kay to recues himself and for the order dated 5 March 2013 to be set aside.

On 19 March 2013 Mr Nowak issued a further application seeking a stay of the steps in the proceedings required by the orders of 22 February 2013 and 5 March 2013 so as to give him an “unhindered opportunity” to progress his appeal and to file and serve a series of applications on the defendants, including applications for permission to bring contempt of court proceedings, for relief from sanctions, for the recusal of Master Kay, for the preservation of documents and electronic records and for an unspecified “unless” order.

The stay application issued on 19 March 2013 was heard in Court 37 by Mrs Justice Sharp on 20 March 2013. She refused the application and declared it to be wholly without merit. In giving judgment on that occasion, Mrs Justice Sharpe said:

Mr Nowak did not serve particulars of claim by 4pm on 22 March 2013, as required by the “unless” order of 5 March 2013. Accordingly, paragraph 1 of that order automatically took effect, so that at 4pm on 22 March 2013 Mr Nowak’s claim form was struck out and his claim dismissed.

This did not mean that the action came to an end altogether. In particular, the court retained, and still retains, jurisdiction to hear an application by Mr Nowak for relief from the sanction of striking out as well as any other application for relief consequential on or relating to the dismissal of his claim. But the striking out of the claim form and dismissal of Mr Nowak’s claim had the legal consequence that, unless and until the court grants relief from that sanction – for example, by setting aside the order of 5 March 2013, Mr Nowak has no right to take any step in the action in pursuit of his claim because he does not have a claim to pursue.

On 2 April 2013 Mr Nowak applied in Court 37, without notice to the defendants, seeking directions about what matters Master Kay should deal with at a hearing fixed for the following day and an order that the action be transferred to the Administrative Court. These applications were heard by Mr Justice Baker who refused them and observed that they were not ones which ought to have been brought.

On 3 April 2013 Mr Nowak’s applications for Master Kay to recuse himself and for the order dated 5 March 2013 to be set aside was heard by Master Kay. The Master dismissed the application for his recusal as wholly without merit. By the time the recusal application had been decided, there was insufficient time left on that day to deal with the application to set aside the order of 5 March 2013. This was adjourned until 16 April 2013.

On 16 April 2013 Mr Nowak did not attend court. Shortly before the hearing emails were sent on his behalf by his friend, Mr Tomlinson, saying that Mr Nowak had been taken ill and asking for an adjournment. Master Kay took the view that insufficient evidence had been provided to show that Mr Nowak was unable to attend the hearing, and refused to grant an adjournment. The Master then considered Mr Nowak’s application to set aside the order of 5 March 2013 and his application of 22 February for a stay, and dismissed these applications as totally without merit. Master Kay nevertheless gave Mr Nowak liberty to apply to vary or set aside his order while requiring any such application to be supported by cogent medical evidence. The full terms of the order dated 16 April 2013, so far as relevant for present purposes, were as follows:

On 1 May 2013 Mr Nowak issued an application for urgent injunctive relief and for an order directing the Trust to verify the truth of statements made in three letters. The precise nature of the injunction sought was not specified, but the need for relief was said to arise from the alleged fact that the witness statements served by each defendant in opposition to Mr Nowak’s disclosure application had been “documents of wilful falsity”. Once again no proper particulars of this allegation were given.

On 8 May 2013 Mr Nowak issued an application for an order to require the chief executives of each of the defendants to attend before the court to certify that the witness statements served in opposition to the disclosure application remained true.

Mr Nowak’s applications of 1 and 8 May 2013 were heard by me in Court 37 on 8 May 2013. At that hearing I allowed Mr Nowak’s friend, Mr Tomlinson, to speak on his behalf. I dismissed the applications as totally without merit. In doing so I explained that, in circumstances where Mr Nowak’s claim had been struck out and judgment entered for the defendants, he had no right to make any applications in pursuit of his claim unless and until the orders of Master Kay dated 16 April 2013 and 5 March 2013 were set aside. I also indicated that I was minded to make a civil restraint order against Mr Nowak, albeit with exceptions built into it to allow him to pursue his applications to set aside the order of 16 April 2013 and, if successful, the order of 5 March 2013.

A draft extended civil restraint order prepared by the defendants’ counsel was circulated on 9 May 2013. A hearing to decide whether to make a civil restraint order and, if so, in what form was fixed for 22 May 2013. I rejected as excessive Mr Nowak’s request that a full day be allowed for the hearing and allowed half a day.

Unfortunately, the orderly preparation for the hearing on 22 May 2013 was disrupted by the actions of the defendants’ solicitors. On the late afternoon of Monday, 20 May 2013, Field Fisher Waterhouse, the solicitors for the NMC, served on Mr Nowak a witness statement accompanied by three lever arch files containing over 1,100 pages of exhibits. This witness statement set out the (by now complex) history of the litigation and exhibited documents generated in the proceedings. Then at 11.57am on Tuesday, 21 May 2013, the Trust’s solicitors, DAC Beachcroft, served on Mr Nowak a witness statement accompanied by another 300 pages of exhibits. I had not given the defendants permission to serve any such evidence and it was quite unreasonable to expect a litigant acting in person (or indeed any litigant) to have to assimilate such a mass of documentation served so shortly before the hearing – all the more so when Mr Nowak was at the time presumably trying to complete his own written submissions which were due to be filed and served by noon on Tuesday, 21 May 2013. It did not help that the Trust’s document bundle delivered to Mr Nowak’s home by courier apparently came apart on his doorstep.

These misguided actions produced a response from Mr Nowak which was only to be expected. On Tuesday, 21 May 2013 Mr Nowak sent a flurry of emails and written submissions asking for the hearing fixed for the following day to be vacated. (One of the emails contained photographs of Mr Nowak’s dogs standing amongst scattered papers outside his house.) He said, with justification, that it was unfair to expect him to read the new bundles whilst preparing his own submissions for the hearing. Mr Nowak also asserted that there were falsehoods in the NMC’s new witness statement which he wished to expose. He asked for an adjournment to enable him to consider the evidence served. Mr Nowak proposed “what I hope to be an agreeable solution, in that all parties exchange shorter and more pointed skeletal arguments” before the adjourned hearing and said:

I saw no reason to vacate the hearing fixed for Wednesday, 22 May 2013, thereby causing a delay of at least six weeks until I was next sitting in London, and was not prepared to allow the hearing to be derailed by the introduction of large amounts of unnecessary documentation. I therefore informed the parties that I would not allow the new evidence and documents served by the defendants to be admitted and that the hearing would proceed as planned. In my message to the parties I reiterated that the only issues to be considered were whether the court should make a civil restraint order and, if so, in what form. I summarised the reasons why I considered that such an order might be appropriate, which Mr Nowak would need to address. These were: that Mr Nowak had made a number of applications which had been dismissed as totally without merit; that he had continued to make such applications despite his claim being struck out; and that it appeared likely that, unless restrained, Mr Nowak would make further applications which he had no right to make or which were otherwise totally without merit.

I also thought it fair, in order to ensure that the parties were on an equal footing, to agree to Mr Nowak’s proposal that the parties’ written submissions for the hearing should be limited to 6 A4 pages; and I gave a direction to that effect. To allow for the fact that Mr Nowak had been distracted in his preparation for the hearing by the defendants’ service of unnecessary evidence, I extended the time by which any written submissions had to be served from noon on Tuesday, 21 May until noon on Wednesday, 22 May, before the hearing at 2pm on that day.

These directions produced an outraged response from Mr Nowak on the morning of 22 May. Instead of lodging a 6 page outline submission for the hearing, he sent a 6 page letter to Mr Chris Grayling MP, The Lord Chancellor, copied to me and many others, headed “Serious Irregularities in the Royal Courts of Justice”. In this letter Mr Nowak complained that his attempts to expose the deceit and perjury of the defendants had been thwarted by a succession of judicial office holders, of whom I was the latest. He said that he had avoided the use of the “C” word but that there were “unexplained exceptional irregularities”. He protested that, by limiting the scope of the evidence and submissions to be considered at the hearing, I was denying him his right to a fair trial under Article 6 of the Human Rights Convention.

The hearing on the afternoon of 22 May 2013 lasted for over three hours. Most of this time was occupied by oral submissions made on behalf of Mr Nowak by his friend, Mr Tomlinson. The main thrust of Mr Tomlinson’s submissions was that Mr Nowak believes that he has been the victim of a deceit perpetrated by the defendants and their solicitors in putting dishonest evidence before the court in opposition to his application for pre-action disclosure; and that Mr Nowak ought, in justice, to be afforded a hearing at which the court will consider this allegation since, if it is true, such deception is a very serious matter which vitiates everything that has happened subsequently in the proceedings.

If there had appeared to be any reasonable basis for this allegation of deceit, I would have had some sympathy with this submission. But there does not. I have already mentioned that this same allegation that the defendants’ witness statements were “documents of wilful falsity” formed the basis of Mr Nowak’s appeal against the order of 5 February 2013 which was certified as totally without merit by Mr Justice Bean on 3 May 2013.

When I asked Mr Tomlinson at the hearing on 22 May 2013 to identify exactly what passages in the witness statements were said to have been wilfully false and the grounds for making that allegation, nothing which he said indicated that the allegation has the slightest basis in fact or is other than a figment of Mr Nowak’s imagination. Allegations of dishonesty are indeed a serious matter, and the corollary is that unless proper particulars are given of them such allegations should not be made and will not be entertained by the court. As Lord Selborne LC said in Wallingford v Mutual Society (1880) 5 App Cas 685, 697:

In his oral argument on 22 May 2013 Mr Tomlinson also explained that I had misunderstood Mr Nowak’s proposal that written submissions should be limited to 6 pages. It had, he said, been Mr Nowak’s intention to place a large bundle of submissions and supporting material before the court which he had nearly completed when he received the new bundles from the defendants’ solicitors. In fact, it turned out that there were documents in the new bundles, in particular transcripts of some of the earlier hearings, which Mr Nowak wanted to make use of himself. His proposal for shorter skeleton arguments was intended to be for a further round of submissions if the hearing was adjourned. Mr Nowak had accordingly been utterly distressed to receive my directions the previous day which had prevented him from serving the extensive material on which he wished to rely.

Mr Tomlinson further informed the court that Mr Nowak had recently issued a new claim in the Administrative Court to appeal against a decision taken in the course of the disciplinary proceedings which are pending before the Conduct and Competence Committee of the NMC. Mr Tomlinson explained that the hearing before the Conduct and Competence Committee is due to take place in August and that, before then, Mr Nowak intends to make further claims for judicial review of various steps taken by the NMC.

Counsel for the NMC said that Mr Nowak’s new claim had not yet been served on the NMC; but he pointed out that under articles 29(9) and 38 of the Nursing and Midwifery Order 2001 a right of appeal to the High Court lies only against a decision at the conclusion of the disciplinary proceedings to impose a sanction on the appellant, and not against a procedural order or any other decision made in the course of the proceedings. Since the substantive hearing in the disciplinary proceedings has not yet taken place, it therefore seems inevitable that the appeal to the High Court which Mr Nowak claims to have brought is one which he has no right to bring.

Nothing said in the oral submissions made on Mr Nowak’s behalf on 22 May suggested to me that a civil restraint order was other than essential. However, as Mr Nowak complained that he had been unfairly prevented from filing written submissions on that question, I did not make any final decision on that day and instead allowed Mr Nowak a further nine days (the time requested by Mr Tomlinson) to complete and lodge his written submissions. On Friday, 24 May 2013, Mr Nowak requested by email an additional seven days until 7 June 2013, and I granted this extension of time. I gave the defendants an opportunity to serve a response, if so advised, by 14 June 2013. I later also notified the parties that, if either of the defendants elected to serve a response to Mr Nowak’s submissions, I would give Mr Nowak a further opportunity to reply so that he would have the last word before I made my decision.

Although I agreed to give Mr Nowak these opportunities to make further submissions and indicated that I would then prepare a written judgment, I did not think it right that he should have carte blanche to issue new claims or applications during this process. I therefore also made on 22 May 2013 a temporary restraining order requiring Mr Nowak to obtain my written permission before making any claim or application against either of the defendants in the period until judgment is given (with the exception of any application to set aside or vary the order of Master Kay dated 16 April 2013).

On 4 June 2013 Mr Nowak lodged further written submissions, which he also copied to the Lord Chief Justice, the Lord Chancellor and the Justice Select Committee. These submissions did not correspond to the submissions which Mr Tomlinson told me at the hearing on 22 May 2013 that Mr Nowak wished to lodge and had nearly completed. In particular, Mr Nowak’s further submissions say very little about the question whether a civil restraint order is appropriate and were not accompanied by any supporting material. Instead, the position taken by Mr Nowak in these submissions is that he should be entitled to what he describes as a “formal trial” before any civil restraint order is made against him. He complains that:

In his written submissions Mr Nowak also asserts that he is being expected to respond to a case for making a civil restraint order which is (a) not recorded on paper and (b) not fully understood or capable of being understood by him.

Mr Nowak further contends that the temporary restraining order made on 22 May 2013 has effectively pre-judged the question of whether a civil restraint order should be made against him and that the form of the temporary order, which applies to all proceedings against the defendants, is “openly unjustified” and shows me not to be objective. Mr Nowak complains that he is suffering from “the pre-made decisions of an undeclared circle of judicial victimisation.”

After receipt of Mr Nowak’s written submissions, the NMC and the Trust both informed the court that they would not be serving any submissions in response as provided for in the order of 22 May 2013. Mr Nowak nevertheless sought to argue that he was entitled to make further submissions himself – his argument being that these communications from the defendants were submissions to which he should be given a right to reply. I rejected that argument.

Between 24 May 2013 and 1 July 2013, when this judgment was sent to the parties in draft, my clerk received a total of 24 emails from Mr Nowak – 13 of which were directed at me while the other 11 were copies of communications sent to others. Many of the communications directed at me sought to interrogate me about the effect of my order dated 22 May 2013 and/or accused me of various forms of judicial misconduct. A recurrent complaint has been that, because I was first away during the legal vacation and was then sitting in a criminal case in Leicester, I had insufficient time available to give Mr Nowak’s case the prompt and constant attention that it requires. At one point Mr Nowak asked me to release the case to another judge. At another he informed me that he is “a rights enfranchised litigant” and complained that he continued to await “proper responses” to his communications to me over the previous two weeks.

The volume and content of this correspondence amply illustrated Mr Nowak’s conviction that, by virtue of being a litigant, he has a right to the undivided attention of the court.

A civil restraint order is defined by rule 2.3(1) of the Civil Procedure Rules as:

Pursuant to CPR rule 3.11, the circumstances in which the court has power to make a civil restraint order against a party to proceedings and the consequences of making such an order are set out in Practice Direction 3C.

The practice direction states that a limited civil restraint order may be made by a judge of any court where a party has made 2 or more applications which are totally without merit (para 2.1) ; an extended civil restraint order may be made by (amongst others) a judge of the High Court “where a party has persistently issued claims or made applications which are totally without merit” (para 3.1); and a general civil restraint order may be made, again by (amongst others) a judge of the High Court, “where the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate” (para 4.1).

Where a civil restraint order is made by a High Court judge, the party against whom the order is made will be restrained: in the case of a limited order, from making any further applications in the proceedings in which the order is made; in the case of an extended order, from issuing claims or making applications in the High Court or any county court concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made; and in the case of a general order, from issuing any claim or making any application in the High Court or any county court – in each case without first obtaining the permission of a judge identified in the order (paras 2.2, 3.2 and 4.2). These consequences of an extended or general civil restraint order are clearly not intended to be invariable, as the relevant provision is in each case prefaced by the words “unless the court otherwise orders”. The effect of the practice direction, as I see it, is to establish default rules, which may be modified as appropriate in any particular case.

The type of order under consideration in the present case is an extended civil restraint order. The maximum length of time for which such an order may be made or extended on any given occasion is two years (paras 3.9 + 3.10).

As explained by the Court of Appeal in the leading case of Bhamjee v Forsdick [2004] 1 WLR 88, the rationale for the regime of civil restraint orders is that a litigant who makes claims or applications which have absolutely no merit harms the administration of justice by wasting the limited time and resources of the courts. Such claims and applications consume public funds and divert the courts from dealing with cases which have real merit. Litigants who repeatedly make hopeless claims or applications impose costs on others for no good purpose and usually at little or no cost to themselves. Typically such litigants have time on their hands and no means of paying any costs of litigation – so they are entitled to remission of court fees and the prospect of an order for costs against them is no deterrent. In these circumstances there is a strong public interest in protecting the court system from abuse by imposing an additional restraint on their use of the court’s resources.

It is important to note that a civil restraint order does not prohibit access to the courts. It merely requires a person who has repeatedly made wholly unmeritorious claims or applications to have any new claim or application which falls within the scope of the order reviewed by a judge at the outset to determine whether it should be permitted to proceed. The purpose of a civil restraint order is simply to protect the court’s process from abuse, and not to shut out claims or applications which are properly arguable.

Mr Nowak has frequently asserted, without ever attempting to support or substantiate the statement, that the imposition of a civil restraint order would infringe his rights under article 6 of the European Convention for the Protection of Human Rights (and many of his emails have been headed “Claimant’s HRA Article 6 Requirements”). There is no substance in that suggestion. It is clear that the right of access to a court inherent in article 6 is not absolute. It is open to States to impose restrictions on would-be litigants, so long as those restrictions are not so wide-ranging as to impair the very essence of the right and provided the restriction pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: see Ashingdane v UK (1985) 7 EHRR 528, para 57; Markovitz v Italy (2007) 44 EHRR 1045, para 99; Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910 (HL). The regime of civil restraint orders does not impair the essence of the right of access to the courts since the litigant will be granted permission to pursue a properly arguable claim or application. Furthermore, it pursues the legitimate aim of preserving court time and resources for deserving cases in a way that is proportionate to that aim.

Restrictions on access to the courts by vexatious litigants have specifically been held to be compatible with article 6. In H v UK (1985) 45 DR 281, the European Commission of Human Rights decided that an order refusing the applicant leave to bring an action pursuant to an earlier order declaring him a vexatious litigant did not constitute an arguable violation of his Convention rights. In A-G v Wheen [2001] IRLR 91, para 38, the Court of Appeal rejected as “wholly unarguable” a contention that an order made under s.33 of the Employment Tribunals Act (refusing a vexatious litigant access to the employment tribunal system without permission) conflicts with the European Convention on Human Rights. And in Bhamjee v Forsdick [2004] 1 WLR 88, after outlining the approach to making civil restraint orders which has since been embodied in the Civil Procedure Rules, the Court of Appeal expressly held that this regime complies with article 6 of the Convention and represents “the kind of step by step process approved by Strasbourg jurisprudence” (para 54). In Mahajan v Department of Constitutional Affairs [2004] EWCA Civ 96, para 41, Brooke LJ said:

Mr Nowak’s contention that making a civil restraint order against him would be a breach of his article 6 rights is itself therefore entirely without merit.

In considering whether to make a civil restraint order and, if so, what form of order to make, it seems to me that there are three questions which the court needs to ask.

The first question is whether the relevant condition specified in the practice direction is satisfied. In the case of an extended civil restraint order, this condition is that the litigant has “persistently issued claims or made applications which are totally without merit” (see para 3.1 of the practice direction). Unless this condition is satisfied, the court does not have the power to make an extended order.

As for what is meant by persistence in this context, in Bhamjee v Forsdick [2004] 1 WLR 88, para 42, the Court of Appeal explained that:

In Kumar the Court of Appeal said, at para 79, that:

The corollary of this is that, where an order of the court records that a claim or application was totally without merit, it is not necessary or appropriate for a judge who is subsequently considering whether to make a civil restraint order to re-examine that question. Quite apart from the estoppel by record which the earlier order creates as between the parties to the claim or application, it would save in the most exceptional circumstances be an abuse of process for a litigant whose claim or application has been determined by the court to be totally without merit to be allowed to re-open that question. To do so would simply involve litigating for a second time a matter which was found to be an abuse of the court’s process on the first occasion. It is difficult to think of a clearer example of an activity contrary to the public interest in the finality of litigation and the efficient administration of justice.

If the pre-condition for making a civil restraint order of one of the three specified types is satisfied, the court may make such an order but is not obliged to do so. In each case the practice direction sets out the scope of the restraint which, as I have indicated, is intended to operate as a default rule where the relevant condition is met. However, in deciding whether to make an order and, if so, whether to depart from the default rule, the court must in principle be guided by the rationale for making civil restraint orders: namely, that such an order is justified if but only if and to the extent that it is necessary to protect the court’s process from abuse. This requires an assessment of the risk which the litigant poses. The second question is therefore to ask what risk the litigant has objectively demonstrated that he will, if unrestrained, issue further claims or make further applications which are an abuse of the court’s process.

The fact that the litigant has repeatedly issued claims or made applications which are totally without merit will itself almost inevitably demonstrate the existence of such a risk. But in considering the extent of the risk it may also be relevant to consider other factors, such as any statements of the litigant’s future intentions, other aspects of the litigant’s conduct and whether the circumstances which have generated the hopeless claims or applications are continuing or likely to continue.

The third question which the court needs to ask is what order, if any, it is just to make to address the risk identified. As I have indicated, because a civil restraint order represents a restriction on the right of access to the courts, any such order should be no wider than is necessary and proportionate to the aim of protecting the court’s process from abuse. In accordance with this principle, the court should therefore approach this question by asking “what is the least restrictive form of order shown to be required”.

In view of Mr Nowak’s contention that it is premature to decide whether to make a civil restraint order against him and that there should first be a “formal trial” of that question, I must first consider whether it is fair to decide the question now. I am quite satisfied that it is.

There is, first of all, no truth in Mr Nowak’s assertion that the case for making a civil restraint order against him is not recorded on paper and is not fully understood or capable of being understood by him. In their skeleton arguments served on Mr Nowak on 20 May 2013 counsel for the defendants set out the relevant law and made submissions as to why the court has power to and should make an extended civil restraint order against Mr Nowak. In addition, in the message which I sent to the parties the following day (referred to in paragraph 36 above) I summarised in writing my reasons for considering that a civil restraint order may be appropriate and the issues to be addressed at the hearing on 22 May 2013.

It was clear at that hearing and is also clear from his written submissions and other communications sent since that Mr Nowak understands perfectly well the rules which govern the making of civil restraint orders and the grounds on which such an order may be made.

Second, I am satisfied that Mr Nowak has had a full and fair opportunity to state his case. He has had an oral hearing. He has been given an opportunity to make further written submissions and the full amount of time (over two weeks) that he requested to prepare such submissions. It is plain from the torrent of communications which I have received from Mr Nowak that he has no difficulty in expressing himself in writing and in doing so at great length. To have a further oral hearing would serve no useful purpose. It would simply involve the sort of waste of the court’s resources which it is the purpose of a civil restraint order to prevent.

I also reject Mr Nowak’s complaint that the temporary order requiring him to obtain my permission before making any new claim or application against either of the defendants in the period until judgment is given was unjustified and shows that I had pre-judged the question whether to make an extended civil restraint order. The temporary order reflected what I considered the balance of convenience to be in relation to the period until a final decision is made. It no more pre-judges that decision than does the grant of any interim injunction. In the event, despite complaints that I have not been immediately available throughout this period to deal with any application from Mr Nowak to issue a new claim or application, he has not made one.

I mention finally a further argument made by Mr Tomlinson on Mr Nowak’s behalf at the hearing on 22 May 2013 in support of the contention that making an extended civil restraint order is premature. This argument was based on paragraph 11 of Master Kay’s order of 16 April 2013, which stated:

Having reviewed the history of this litigation and the oral and written submissions made by and on behalf of Mr Nowak, I am satisfied that this is a case in which the court has power to make an extended civil restraint order against Mr Nowak and that it is imperative to do so. The reasons are these.

First, the condition for making an extended civil restraint order is plainly met. In the space of five months between December 2012 and May 2013 Mr Nowak made no fewer than eight applications which were found to be totally without merit. These were:

his application of 12 December 2012 for pre-action disclosure, dismissed by Master Kay on 5 February 2013;

his application of 22 February for a stay, dismissed by Master Kay on 16 April 2013;

his application of 26 February 2013 for permission to appeal against Master Kay’s order of 5 February 2013, refused by Mr Justice Bean on 3 May 2013;

his application of 13 March for Master Kay to recues himself, dismissed by Master Kay on 3 April 2013;

his application of 13 March 2013 to set aside Master Kay’s order of 5 March 2013, dismissed by Master Kay on 16 April 2013;

his application of 19 March 2013 for a stay, dismissed by Mrs Justice Sharp on 20 March 2013;

his application of 1 May 2013 for urgent injunctive relief, dismissed by me on 8 May 2013; and

his application of 8 May 2013 for an order requiring the chief executives of the defendants to attend before the court, dismissed by me on 8 May 2013.

On any view, this course of conduct has been persistent. The extent of Mr Nowak’s obduracy is evidenced not only by the number and frequency of totally unmeritorious applications made but also by the fact that Mr Nowak continued make them even after his claim had been struck out and judgment entered for the defendants.

Second, there is a clear and present risk that, if unrestrained, Mr Nowak will make further applications and issue further claims which are an abuse of the court’s process. The risk is obvious from Mr Nowak’s track record. That record also shows that costs orders are no deterrent for Mr Nowak. Pursuant to Master Kay’s order dated 5 February 2013 Mr Nowak was ordered to pay costs of £3,000 to the NMC and costs totalling £8,200 to the Trust. In addition, pursuant to Master Kay’s order dated 16 April 2013 Mr Nowak has been ordered to pay costs of £12,000 to the NMC and costs totalling £18,500 to the Trust. My understanding from what I was told at the hearing on 22 May 2013 is that none of these costs have been paid and there is no realistic prospect that these or any further costs which Mr Nowak may be ordered to pay will be paid by him, as he does not have the means to make any payment. I also note that Mr Nowak has been granted remission of court fees, so that there is no administrative cost for him in issuing further claims or applications.

Mr Nowak has stated in terms that he intends to issue further claims for judicial review against the NMC. On the basis of his conduct to date, there is a real risk that these claims will be totally without merit. Accordingly, a limited civil restraint order would not be sufficient and an extended order is required.

In the present case I do not think that the default form of extended civil restraint order provides adequate protection in relation to the risk that Mr Nowak will make further spurious claims against the NMC and/or the Trust. That is because its wording is confined to claims and applications “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made”. This formulation is in my view insufficient in the present case for three reasons.

First, it leaves room for argument about whether a new claim does concern a matter “involving or relating to or touching upon or leading to” the proceedings in which the order is made. Although this wording is widely drawn, there is still potential to argue about what type and degree of connection falls within its scope and whether a new claim has such a connection. For example, if Mr Nowak were to issue a claim for judicial review of a step taken by the NMC in the disciplinary proceedings currently pending against him, it may be arguable whether the claim falls within the description or not. Arguing about whether a new claim against the NMC falls within the scope of the civil restraint order would itself be a sterile waste of time and cost. To avoid that risk, I think it right that the order should be couched in terms which brook no ambiguity by bringing any claim or application against the NMC or the Trust within its scope.

Second, I do not think that this will cause any prejudice to Mr Nowak because I think it unlikely that Mr Nowak will – or at any rate will have any reason to – issue any claim against the NMC or the Trust which turns out, upon analysis, not to be related to the present proceedings.

Third, it is apparent from the wild allegations and repeated totally unmeritorious applications made by Mr Nowak in the present action that he has developed an irrational animosity towards the Trust and the NMC. In these circumstances I consider there to be a risk that any new claim brought against the Trust or the NMC even if not related to the present proceedings will be devoid of merit which is sufficient to justify requiring Mr Nowak to obtain permission to bring it.

After this judgment and the proposed form of order had been circulated in draft, counsel for the Trust made a written submission asking for the scope of the order to be further widened to prevent Mr Nowak from furthering his grievance by issuing claims without permission against officers or employees of the Trust. I am not persuaded, however, that it is desirable or necessary at least at this stage to amend the wording in the somewhat complicated way which was requested.

I accordingly consider that the appropriate order in this case is one which is wider than the default form of extended civil restraint order in that the order should require Mr Nowak to obtain permission before issuing any claim or making any application in the High Court or any county court (a) against either of the defendants to the present proceedings in relation to any matter or (b) against any other party in relation to any matter involving or relating to or touching upon or leading to the proceedings in which this order is made.

I indicated at the hearings on 8 and 22 May 2013 and in the draft list of exceptions which I circulated in between those hearings that any extended civil restraint order should not affect Mr Nowak’s rights to seek to set aside or vary the orders of Master Kay dated 5 March 2013 and 16 April 2013 in accordance with the provisions of those orders, nor any rights of appeal against those orders. Appropriate exceptions will therefore be incorporated in the order. I do not think it necessary to make express provision at this stage for what should happen in the further event that Mr Nowak (a) is successful in setting aside paragraphs 4 and 5 of the order dated 16 April 2013 and (b) is also successful in setting aside the order dated 5 March 2013 or in obtaining relief from the sanction of striking out imposed by that order. If this contingency arises, an application can if necessary be made to amend the terms of the civil restraint order.

I also indicated at the hearing on 22 May 2013 that any order made should not affect Mr Nowak’s rights of appeal under the Nursing and Midwifery Order 2001 if the disciplinary proceedings against him result in the imposition of a sanction. Again therefore, an appropriate exception will be incorporated in the order.

The order of Mr Justice Bean dated 3 May 2013 which refused permission to appeal against the order of Master Kay dated 5 February 2013 included the usual provision allowing Mr Nowak, within 7 days of receipt of the order, to apply for a hearing at which he may renew his application. In his written submissions dated 4 June 2013, Mr Nowak complained that it is unreasonable to prevent him from seeking to renew his application for permission to appeal in accordance with this provision. He asserted that, should his appeal succeed, then Master Kay’s orders of 5 February 2013 and 5 March 2013 “could not conceivably stand” and that, if those two orders were overturned, no order subsequent to 5 March “could logically survive”. Mr Nowak submitted that in these circumstances to prevent him from pursuing his application for permission to appeal is “illogical and cannot withstand considered judicial scrutiny”.

This argument is based on a misconception. Mr Nowak’s application for permission to appeal is against the order of 5 February 2013 only. It is not an application for permission to appeal against the order of 5 March 2013 pursuant to which Mr Nowak’s claim was struck out, and which would still stand even if the appeal against the order of 5 February 2013 were to succeed. Nor does the application for permission to appeal relate to the order of 16 April 2013, which gave judgment for the defendants. As explained earlier in this judgment, unless and until they are both set aside, the orders of 5 March 2013 and 16 April 2013 present an absolute bar to any attempt by Mr Nowak to obtain an order for disclosure or take any other step to prosecute his claim. In these circumstances Mr Nowak’s application for permission to appeal from the order of 5 February 2013 should be stayed. If he succeeds in getting the orders of 5 March 2013 and 16 April 2013 set aside and his claim reinstated, he can apply for the stay to be lifted.

In further written submissions sent after this judgment was circulated in draft, Mr Nowak has sought to re-open this issue, pointing out that the order of 5 February 2013 included the direction that he serve particulars of claim by 22 February 2013 which led, when he failed to comply with it, to the “unless” order made on 5 March 2013. Mr Nowak says that his appeal is against the whole order of 5 February 2013 including the direction for service of particulars of claim, and not just against the refusal of his application for pre-action disclosure, and argues that this means that, if his appeal were to succeed, the order of 5 March 2013 would “automatically collapse”.

This iteration of Mr Nowak’s argument rests on the same misconception as the previous version. Even if – despite his appeal having been certified as wholly without merit – Mr Nowak were somehow to succeed at an oral hearing in obtaining permission to appeal and were then to succeed on the appeal in getting the whole order of 5 February 2013 – including the direction in paragraph 3 for service of particulars of claim – set aside, it is not true that the order of 5 March 2013 would “automatically collapse”. Persuading the court that the direction for service of particulars of claim by 22 February 2013 ought not have been made might provide a strong basis for an argument that the court should not have made an “unless” order on 5 March 2013, but it would not automatically result in the order of 5 March 2013 being set aside. As I have already explained, the order of 5 March 2013 is a separate order which could only be set aside on an appeal from that order or pursuant to the liberty to apply contained in paragraph 4 of that order. Although Mr Nowak stated in the submissions included in his appeal bundles lodged on 27 March 2013 that he was intending to appeal against the order of 5 March 2013 and noted that he had until 9 April in which to file an appeal notice, he did do so. He is therefore now long out of time for appealing. His only remaining avenue is therefore to succeed on his application issued on 13 March 2013 to set aside the order.

That application has itself, however, been dismissed as totally without merit in the order made on 16 April 2013 which also gave judgment for the defendants and which would also have to be set aside before Mr Nowak could now pursue his application to set aside the order of 5 March 2013. The order made on 16 April 2013 is thus another order distinct from the order of 5 February 2013 which would not “automatically collapse” even if the order of 5 February 2013 were to be set aside on an appeal.

For these reasons, Mr Nowak’s renewed attempt to argue that he should be allowed to pursue his appeal in circumstances where his claim stands struck out with judgment entered against him remains misconceived.

The costs of the hearing on 8 May 2013 were reserved and remain to be dealt with. In circumstances where the result of that hearing was that Mr Nowak’s applications were dismissed as totally without merit, he should be ordered to pay the defendants’ costs. I assess those costs summarily in the sum of £5,000 as regards the NMC and £4,400 as regards the Trust.

I was initially inclined to make no order for costs of the hearing on 22 May 2013 on the basis that (1) those costs were not directly occasioned by Mr Nowak since the question of whether to make a civil restraint order was raised by the court of its own motion and (2) having further argument about costs seemed unprofitable when there appears to be no realistic prospect that Mr Nowak will to pay any costs awarded. However, counsel for the NMC in written submissions (which counsel for the Trust adopted) has pointed out, rightly, that the likelihood that an order for costs will not be complied with is no reason not to make it. He further submits that, although proposed by the court of its own motion, the only reason a civil restraint order was necessary was because of Mr Nowak’s conduct. Furthermore, the hearing on 22 May 2013 was itself necessitated by Mr Nowak as he objected to the making of an order and insisted on a hearing to oppose it.

Although I gave him an additional 10 days in which to do so, Mr Nowak has not sought to answer these submissions, and they seem to me to be well founded. The bulk of the costs claimed in the defendants’ statements of costs, however, relate to the preparation of the evidence which they served just before the hearing on 22 May. As mentioned earlier (at paragraph 34 above), the defendants did not have permission to serve this evidence and their conduct in doing so immediately before the hearing was unreasonable and disruptive. I therefore disallow the costs of preparing this evidence. The defendants should, however, be awarded their costs (so far as reasonable and proportionate in amount) of participating in the hearing on 22 May 2013 itself. I assess these costs in the sum of £2,000 in respect of each defendant.

On 1 July 2013 this judgment was sent to the parties on a confidential basis in draft in the normal way to seek their assistance in correcting any typographical or other minor errors. I also invited any submissions on the wording of the proposed order, which was also circulated in draft, and on costs. On 4 July 2013, just after the time by which I had requested responses from the parties but before the judgment had been handed down, I received a letter from Mr Nowak asking for more time. In this letter Mr Nowak protested that the period of 3 days which I had allowed for corrections was “copiously unfair” to him as a litigant in person suffering from ill health. He noted that counsel for the Trust had pointed out a factual error in the draft judgment and said that he needed time to specify a “multitude” of other factual errors. Mr Nowak requested a further period of 21 days for this purpose. He also submitted that he was entitled to a hearing on the question of costs.

In response to this request, I decided to postpone handing down my judgment and to allow Mr Nowak a further period of 10 days until 15 July 2013 to file and serve written submissions confined to the following:

pointing out any obvious factual errors in the draft judgment;

responding to the Trust’s submission (referred to at paragraph 86 above) that the civil restraint order should be drawn more widely; and

responding to the NMC’s submission that Mr Nowak should be ordered to pay costs of the hearing on 22 May 2013.

On 5 July 2013 Mr Nowak submitted a document entitled “Error Report (1)” which he described as a “statement of factual correction” of the draft judgment. In reality this document was no such thing. It did not identify any factual error but was an attempt by Mr Nowak to re-open my conclusions of law stated in paragraphs 91 and 92 above and to renew his argument that, if his appeal against the order of 5 February 2013 were to succeed, Master Kay’s order of 5 March 2013 would “automatically collapse”. I have explained at paragraphs 93 to 95 above why Mr Nowak’s argument remains misconceived.

In the document sent on 5 July 2013 Mr Nowak also made the suggestion that my draft judgment had not in fact been written entirely by me. In several emails sent to me and to counsel and solicitors for the defendants over the next few days Mr Nowak pursued this delusion. He suggested that parts if not the majority of the judgment had been written by counsel for the defendants – presumably as part of a conspiracy with the court – and called for responses to this accusation.

On 9 July 2013 I reminded Mr Nowak that the only reason why I had agreed to delay handing down this judgment was to allow him further time to file and serve written submissions dealing with the three matters mentioned in paragraph 100 above and not for any other purpose. On 15 July 2013 Mr Nowak asked for a further day in which to complete his submissions as a file on his computer was said to have become corrupted. On 16 July 2013 Mr Nowak sent another written submission. This still did not identify any factual error in the judgment. Instead, Mr Nowak complained at length that counsel for the defendants had not pointed out any factual errors during the additional time which I had afforded Mr Nowak to do so. He made baseless allegations of professional misconduct against counsel (as he has done regularly throughout the proceedings). Mr Nowak also made a circular argument that “it is quite unlikely that Mr Justice Leggatt would have given the opportunity for substantive factual errors to be corrected had he not been of the view that the existence of such errors was known or at least likely.”

On 17 July 2013, after I had indicated that I would now finalise my judgment, Mr Nowak sent a further email inviting me to require counsel for the defendants to respond to his submissions and to specify all factual errors in the draft judgment of which they are aware. Mr Nowak has not attempted to explain what reason there could be to suppose that counsel for the defendants are aware of any factual errors in the judgment which they have not pointed out in circumstances where he himself has not found any.

On 18 July 2013 Mr Nowak sent yet another email this time seeking permission to commence new judicial review proceedings against the NMC to challenge “a sequence of ruthlessly unlawful steps.” Mr Nowak also asked for an immediate order for directions and a temporary stay of the NMC disciplinary proceedings. This has been followed by a further email from Mr Nowak on 22 July 2013.

In total, between 4 and 22 July 2013 my clerk received 26 emails (many with attachments) from Mr Nowak. Of these, 13 were directed at me while the other 13 were copies of communications sent to others (usually with a long list of recipients). None of these communications contained any factual correction to the draft judgment nor addressed either of the other two matters for which I had, at his request, extended Mr Nowak’s time for response. They simply wasted the time of the court and all those to whom they were sent.

In the light of the persistent nuisance caused by Mr Nowak’s abuse of email, I have added to the order a direction that, from now on, any communication from Mr Nowak to the court or to any other party in or in connection with these proceedings or with any new claim or application to which this order applies must be filed or served in hard copy. Communication from Mr Nowak by email or other electronic means will not be treated as effective.

Mr Nowak’s application for permission to issue a new claim for judicial review will need to be made under the extended civil restraint order which I shall now make and in accordance with the provisions of that order.