The Chief Constable of Avon And Somerset Constabulary v Gray

The Chief Constable of Avon and Somerset Constabulary [“the Applicant”] issued an application on 6 November 2018 requesting the Court to extend a General Civil Restraint Order [“GCRO”] made against Mr Gray. The GCRO was originally made by Teare J in November 2014 and was extended by Warby J in November 2016 to expire on 17 November 2018. For reasons that do not affect the outcome of the application, it has been heard on 6 June 2019. The GCRO had been extended to the date of the hearing and, on 6 June 2019 I extended it to the date when any order made after the hearing of the present application takes effect.

On 11 June 2019 Mr Gray wrote to the Court raising the “issue of Recusal … in the light of [my] involvement in R v Gray (Crown Court ref T20180341) Transfer of venue matter.” He raised the issue on the basis of a letter from HMCTS dated 5 February 2019, which included the following:

Mr Gray’s letter to the Court said:

Although Mr Gray’s letter says it is not a formal or detailed application for recusal in open court, the allegations are so serious and baseless that they should be addressed now.

In March 2018 Dingemans J, who was then Presiding Judge on the Western Circuit, asked me (as Presiding Judge on the South Eastern Circuit) if I would accept the transfer of a case against Mr Gray which involved allegations of breaching an injunction and assault. I was told that details appeared on the Crown Court Digital Case system but did not look them up. I was told that there were difficulties in listing the case on circuit, which included that he was not able to find any firm of solicitors or any local barristers to act for him. I was also told that HMCTS had written a letter banning him from Court buildings in Bristol unless he had a hearing listed there because of alleged incidents in the past and that Mr Gray was concerned that he would not get a fair trial in Bristol. Dingemans J told me that he had heard the PTPH

In reply I said that if Mr Gray was Bristol-based (as appeared to be the case), it seemed slightly implausible to me that London would be the best or most economic location for Mr Gray’s next trial. My immediate reaction was that, if the case was not to be heard on the Western Circuit, either Cardiff or Reading would be best. I pointed out that, if the case came to London, a Court in Central London would seem to be the best, but that would be quite a hike from Paddington and not ideal whether Mr Gray came from Bristol or elsewhere on the Western Circuit. I therefore said that it was not clear to me that the South Eastern Circuit in general or London in particular was the right place for Mr Gray’s next trial.

Dingemans J replied with information about bus fares to Central London or Cardiff and told me that Mr Gray would travel to London. He then asked if I would like him to ask the Wales Presiders to take his case. I replied that I would. That was the last I

I did not refuse to take the case to be tried on the South Eastern circuit, though I accept that my response may have had the effect of diverting the case to Wales; nor did I have any information to suggest that Wales was not an appropriate venue for Mr Gray’s trial. In particular I had no information about Mr Gray’s concerns about Albion Chambers or to the effect that his concerns about Albion Chambers meant that he would be unhappy if the trial was listed in Wales. I made no case management decision. I did not overrule Dingemans J either effectively or at all. I did not refer the case to Cardiff. I merely raised the suggestion for Dingemans J to consider whether Cardiff (or Reading) might be more appropriate than London, which he then did. I heard no more about the matter until reading the papers for the present application, when I learned of what Mr Gray describes in his letter as “bad blood with Albion Chambers”. For the avoidance of any doubt, I had no prior information or knowledge about any actual or asserted links between Albion Chambers and either local firms in Cardiff or the Crown Court at Cardiff. I had not read and did not read any of the earlier judgments by other judges (up to and including Warby J) about the CRO that I am now asked to extend. I neither heard nor knew that Mr Gray’s case had in fact been assigned to Cardiff until the start of my involvement with the present application, when it (and Mr Gray’s concerns) became clear on reading into the papers.

There is no basis for Mr Gray’s assertion that I deliberately referred the case to Cardiff CC “in order to keep the matter “in-house” and to rob [Mr Gray] of [his] basic right to independent representation” and the assertion is untrue. The assertion that I

In these circumstances, my position on the matter is that no fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that I was or would be biased in dealing with the present application.

The legal framework for the present application is derived from CPR r.3.11 and PD 3C, which provides:

The normal rules about fee exemption do not apply to applications by a person who is subject to a GCRO for permission to bring proceedings pursuant to PD 3C 4.2(1) or (2). Paragraph 19 of Schedule 2 to the Civil Proceedings Fees Order 2008 as amended provides:

On enquiry from the Court office in Bristol I am informed that the appropriate fee that would be required by the Court to be paid by a person under a restraint order who wishes to make an application for permission pursuant to PD 3C 4.2 [“the GCRO Application Fee”] is £255. The effect of paragraph 19 of Schedule 2 of the 2008 Order for a person who would otherwise be fee-exempt is that she or he has to raise and pay the GCRO Application Fee of £255 up front, and must bear cost unless and until their application is granted, at which point it should be refunded. If the application is unsuccessful there is no refund.

The test for imposing a GCRO is stated by [4.1] of PD 3C to be that “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.” In R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536 at [60] the Court of Appeal said that this language:

“… is apt to cover a situation in which one of these litigants adopts a scattergun approach to litigation on a number of different grievances without necessarily exhibiting such an obsessive approach to a single topic that an extended civil restraint order can appropriately be made against him/her.”

The test when the Court is asked to extend a GCRO pursuant to [4.10] of PD 3C is different and is that the Court “considers it appropriate” to do so. That test must be read in the light of the criteria for imposing a GCRO in the first place, since the restriction upon the party’s right to bring litigation is the same during the original term of a GCRO or during its extension. In briefest outline, the question either on an original application for a GCRO or on an application for an extension is whether an order (or its extension) is necessary in order (a) to protect litigants from vexatious proceedings against them and/or (b) to protect the finite resources of the Court from vexatious waste. This question is to be answered having full regard to the impact of any proposed order upon the party to be restrained. The main difference between an original application for a GCRO and an application for an extension is that, on an application for an extension, the respondent will have been restrained from bringing vexatious proceedings during the period of the existing GCRO.

The original GCRO made by Teare J in November 2014 was in conventional terms. Warby J extended the GCRO in language that differed in form but, subject to one point, not in substance. As originally made and as extended by Warby J the GCRO prohibits Mr Gray from issuing any claim or making any application in any court without first obtaining the permission of a High Court Judge. It reflects the terms of [4] of PD 3C about the need to notify the other party before making any application for permission, which is to be made in writing, and for automatic dismissal if he issues without obtaining permission first.

The one point of substantial difference between the GCRO as imposed by Teare J and as extended by Warby J was in response to Mr Gray’s submission to Warby J that the imposition of a GCRO in conventional terms would operate as a complete bar to him bringing proceedings because he could not afford the up-front payment of the GCRO Application Fee. Warby J ordered that, if Mr Gray were to make an application for permission to bring proceedings and it was refused because he was not entitled to fee remission and had not paid or offered to pay the GCRO Application Fee for such an application, then Mr Gray would not need separate permission pursuant to the terms of the GCRO in order to make an application to the Administrative Court for permission to bring judicial review proceedings if the ground of the proposed judicial review were that he is unable to pay the GCRO Application Fee and has therefore been unlawfully denied access to justice.

Mr Gray’s GCRO history up to the time of Warby J’s order is set out in Warby J’s judgment at [8]-[13]. I do not set it out in detail here. Teare J made the order of his own initiative on 4 November 2014 having found that Mr Gray persisted in issuing claims or making applications which were totally without merit (“TWM”) in circumstances where an ECRO would not be sufficient or appropriate.

The application to Warby J was supported by a witness statement from Susan Dauncey who had been employed as the in-house solicitor to the Chief Constable of Avon and Somerset Constabulary for 30 years. As is clear from the extracts that Warby J included at [16] of his judgment, Ms Dauncey recognised that there had been occasions where Mr Gray had brought proceedings that were well-founded and succeeded so that compensation was paid to him. That fact was also recognised by Warby J in his summary of the relevant procedural history up to the time of Teare J’s judgment that is at [26]-[28]. As a matter of record, and excluding some matters which had led MacDuff J to impose a GCRO on Mr Gray in 2013, between 2010 and the imposition of the GCRO by Teare J, there were 7 TWM findings made against Mr Gray with an eighth being made by Longmore LJ when refusing permission to appeal against the orders made in the trial before HHJ Cotter QC. During that period, Mr Gray had won two claims against the present Applicant, the first resulting in an award of damages of £5,025 which was paid in September 2013 and the second resulting in what was reasonably described as a pyrrhic victory before HHJ Cotter QC in September 2014 when Mr Gray established liability, was awarded damages of £1 but was also ordered to pay 90% of the Chief Constable’s costs.

Warby J’s reasoning is set out in full in his judgment, which itself is a matter of record. I include certain paragraphs to illustrate the basis of his decision, but his judgment should be read in full and with care by anyone concerned to understand it properly. In the course of his judgment he said:

In the course of his judgment Warby J expressed concern about the submission raised by Mr Gray that the imposition of a GCRO amounted in practice to a complete bar on his access to justice because he could not afford to pay the application fee up-front and therefore could not apply even in respect of a well-founded claim. Warby J said in relation to this point, at [51] of his Judgment:

As already mentioned at [17] above, the solution that Warby J devised to deal with Mr Gray’s concerns about access to justice was to open the way for him to challenge the lawfulness of any refusal of permission to bring proceedings because he had not paid the application fee. Accordingly, after adding a post-script to his judgment he included in the GCRO as extended for the next two years a provision that:

Mr Gray has not presented any application for permission pursuant to the GCRO as extended by Warby J, either with or without proffering payment of the application fee. The mechanism for challenging the legality of the requirement that Mr Gray pay the application fee if he can show that he cannot pay it has therefore not been implemented or tested in practice.

There has been no appeal against the orders of Teare J and Warby J, which stand as matters of record. It is no part of my function to act as any form of an appellate court in relation to those decisions and orders. In the same way, it is no part of my function to second guess the various other orders that have been made over time. They stand as matters of record and provide part of the context in which I must make my independent decision about the position as it appears now. I start with no preconception or prejudice about whether the GCRO should be extended. For the avoidance of any doubt, my decision whether it is appropriate to extend the GCRO depends upon my assessment of the admissible evidence that i During the hearing, Mr Dixey addressed the amount of the GCRO Application Fee on two occasions. On the first occasion, just before the short adjournment, he raised the possibility that the fee might be £55. He suggested that the fee may in fact be £55 rather than £255. The Court suggested that this point should be sorted out after the short adjournment: see page 67 of the transcript. After the adjournment, Counsel submitted that he did not know what advice an individual would obtain as to what the fee would be; and he suggested that there might be at least two different fees, one of £255 and £55. In this state of the submissions, the draft of this judgment was prepared on the basis that the advice the Court had been given was correct. In response to the draft judgment, Counsel submitted a note s available to me. That evidence may include, but is not limited to, matters of record about past proceedings and applications.

One of the matters of record that I can and should take into consideration is the fact that other judges have held that applications by Mr Gray have been TWM, not least because of the provisions of CPR 3.11 and the Practice Direction.

In the analogous context of applications by the Attorney-General under s. 42 of the

Supreme Court Act 1981 it has been held by the Court of Appeal that the Court considering the application is entitled to rely upon previous findings by other Courts that a litigant’s conduct has been vexatious. The reason was explained by Lord Donaldson MR in AG v Jones (Marcus David) [1990] 1 WLR 859 at 863D:

“The fifth and last issue of law arose out of Mr. Jones' wish to challenge the conclusion of various judges in the underlying proceedings that his conduct in those particular proceedings had been vexatious or had involved an abuse of the process of the court. We ruled that he was not free to do so. If any such conclusion was, or was thought by Mr. Jones to be, erroneous, the remedy was to appeal in those proceedings or, where it was said that the judgment was vitiated by the fraud of other parties, to take appropriate steps to have the judgment set aside. But if that was not done, the decision must stand and is capable of forming the basis for the court being satisfied upon an application under section 42 that Mr. Jones had habitually and persistently and without any reasonable ground acted in the manner referred to in subsection (1)(a) and/or (b).”

The Court’s approach should include that the evidential significance of findings of TWM may alter with the passage of time, depending upon all the circumstances. Because Mr Gray has brought no civil proceedings or applications since the order of Warby J extending the GCRO, the various findings of TWM now provide part of the historical context for the CROs that have been made in the past; but there are no recent findings of TWM to provide contemporaneous evidence of recent unmeritorious civil proceedings or applications.

For the present application, the Applicant has served and relied upon a witness statement of Mr Andrew Knight that was dated 7 November 2018, to which I refer below.

On 20 December 2018 Warby J made an interim order for directions including that the GCRO be extended until after judgment on the present application or further order in the meantime and that if Mr Gray wanted to rely upon written evidence he must file it and serve it no later than 4.30pm on 17 January 2019. In the event Mr Gray was in custody during the period to 17 January 2019 and thereafter until 1 March 2019. In the light of written representations from Mr Gray dated 5 January 2019, which included a request that Warby J recuse himself and a request for extension of the timetable, Warby J refused to recuse himself and on 16 January 2019 extended Mr Gray’s time for serving any evidence upon which he wished to rely until 18 March 2019.

Mr Gray did not file any materials until the day before the hearing. On 5 June 2019 he filed by email (a) his skeleton argument at 9.15 am in the morning and (b) a (short) witness statement and documentary evidence which started to be received by the Court shortly after 4.15 pm. His explanation to the Court for the late service of documents was that (a) he considered that Warby J’s further involvement in the case

The issue is whether I consider it appropriate to extend the GCRO. In deciding that issue I shall adopt the approach I have summarised above.

The Applicant’s case may be shortly stated. He submits that the evidence put forward in support of his application shows that Mr Gray is and remains an obsessive and highly unreasonable litigant as previous judges have found him to be. He therefore submits that there is every reason to believe that, if not restrained by the continuation of the GCRO, there is a substantial risk that (as found by Warby J in 2016) he would persist in bringing actions or making applications that are totally without merit. He points to the fact that Mr Gray has continued to raise complaints “which suggest an unchanged and fantastical view of the world where he considers himself to be the victim of a multi-agency conspiracy aimed at denying him his rights and victimising him.” He submits that Mr Gray, being unable to issue civil proceedings, uses statutory complaints processes as an alternative. If the possibility of issuing civil proceedings is restored, the Applicant submits that Mr Gray will almost certainly restart his campaign against the Applicant and other persons protected by the GCRO.

In making these submissions, the Applicant expressly disavows any suggestion that the Court should carry out a factual analysis of whether the complaints made by Mr Gray, which formed the bulk of the documentary evidence produced by Mr Knight, were true or well-founded. But he submits that the Court can have regard to (a) the types of allegations being made by Mr Gray, which are extreme, (b) the number of complaints being made, and (c) the fact that most of his complaints have not been upheld.

In oral submissions the Applicant submitted that Mr Gray’s written Skeleton Argument for the hearing demonstrates that he remains convinced that there is a grand conspiracy in which Judges (including Warby J) are involved. That is relied upon as support for the proposition that, if the GCRO is lifted, there will be a flood of unjustified litigation. He also points to Mr Gray’s use of extremely vituperative language as showing a settled animus against the Applicant and all those involved in the administration of justice who do not agree with him or do what he wishes.

Mr Gray’s written skeleton argument was prepared in the mistaken belief that the present application would be heard by Warby J. Turning to the substance of this application, Mr Gray made the following main points:

Since the extension of the GCRO by Warby J, Mr Gray has made or continued 23 complaints against the police and individuals associated with the police during 2017 and 2108 up to the date of issue of the present application. He has also made complaints about Judges and others associated with the administration of the Courts. The Applicant’s approach has been to exhibit Mr Gray’s letters of complaint and the documents that track their subsequent treatment. The documents include examples of Mr Gray’s response to decisions taken in the course of dealing with his complaints.

The Applicant relies upon these documents to show that Mr Gray continues to consider himself the victim of a wide-ranging conspiracy involving the police, Judges and others involved in the administration of justice. Mr Gray’s response is that it is not open to this Court to determine whether or not his underlying complaints are wellfounded or not, since there has been no trial of the issues he has attempted to raise by his complaints. I agree that it is not open to this court to make findings of fact where, for example, the documents demonstrate that there are competing versions of the events that have given rise to Mr Gray’s complaints. However, the number and range of complaints provide clear evidence about the state of Mr Gray’s mind in and arising out of his dealings with the police and the Court system.

It is beyond the scope or needs of this judgment to set out all the evidence upon which the Applicant relies. The sheer number of complaints to the PSD and the seriousness of the allegations Mr Gray makes in those complaints are, on any view, remarkable and well out of the ordinary. This may be illustrated by taking two months, January and March 2018.

In January 2018:

In March 2018:

On numerous occasions, the rejection of one complaint has led to the making of another, this time against those who have been involved in the rejection of the earlier one. I take one sequence of complaints as illustrative of this phenomenon:

Another series of complaints bears repeating in a little detail as illustrating Mr Gray’s approach when people do not act in a way that conforms with his wishes and convictions. The history is as follows:

Mr Gray’s conviction that any conduct with which he does not agree is the result of a conspiracy against him and to be interpreted in the worst possible light is illustrated by a sequence of events concerning the proposed listing of a hearing in front of HHJ Evans, a Circuit Judge based in Taunton. Mr Gray made an application to vary a

The clearest evidence of Mr Gray’s mindset comes from a recording on the bodyworn camera of a police officer who was called to the incident at the employment agency on 18 December 2017, to which I have referred above. In the course of speaking to the officer Mr Gray said:

“I’m living out some terrible – I’m blackballed from everybody and my name is mud (inaudible). I’ve got scars on me inflicted by you that are supposed to be protecting people. I’ve got loads and loads of cases with the PSD and the IPCC and in the courts and the criminal courts concerning ongoing matters. I’m costing the tax payer – can I just explain, all I want to do is get a job. I cost the tax payer about £100,000 a year in court cases because I’m roaming the streets creating all kinds of kerfuffle with all kinds of people, if your here acting as their defendants straight away, everyone else takes the same policy, they do what they like to me and you come in to defend them, its basically me against anybody who wants….”

A little later he said:

“You know me, you think you know me, you think you know me, what I enjoy is the truth, what I enjoy is right and wrong and I certainly enjoy taking bent coppers to task. That’s what I love. I love for, that’s my religion and my God when I wake up in the morning.”

I have no doubt at all that these statements accurately reflect Mr Gray’s outlook on life.

There is clear evidence to support the Applicant’s submission that Mr Gray is likely to bring proceedings if the GCRO is lifted. Specific examples are set out below and also evidence Mr Gray’s state of mind and attitude with regard to the Applicant, his force, and others concerned with the administration of justice:

Mr Gray was eloquent in explaining that his personal and financial circumstances do not enable him to fund an application for permission as required by the terms of the GCRO. He has a criminal record and has recently been in prison, being released on 1 March 2019 after serving part of a sentence of 51 weeks imposed by the Crown Court in Cardiff on 6 September 2018 for offences of battery and breach of a civil injunction. He is currently on benefits, though the papers contain evidence to support his assertion that he has tried to obtain work. The fact that the papers also evidence difficulties and altercations at employment offices, which has led to an extensive injunction banning him from attendance at DWP jobcentres in Bristol and surrounding towns and cities supports his evidence to the effect that his financial outlook is bleak. He told me, and I accept, that he currently receives £270 per month in benefits i.e. just £15 more than the application fee for one application. He has a house which he estimates to be worth about £200,000 but there is already a charge on that house and substantial adverse costs orders remain outstanding against him.

Mr Gray’s conduct during the hearing suggested a high degree of agitation going beyond the normal reaction to the stresses that litigation imposes on a litigant in person. I have already referred to his explanation why he had not submitted his evidence on time: see [30] above. During the course of the hearing he intervened with what he himself described as an “outburst”. In explanation he said that he regarded the proceedings as abuses that were degrading him because they were making him relive in a methodical and inhuman and dry manner (referring to the presentation of the application by Counsel for the Applicant) “deeply emotional matters, in which I’ve actually got physical scars as a consequence of these incidents so it’s very difficult for me to keep a lid on these issues and I can’t get legal representation on any matter, whether criminal defence or civil defence… .” He then left court saying that he was “going to help everybody” and that he would come back in at the end of Counsel’s submissions because he knew what Counsel was going to say. Having confirmed that he was happy for the hearing to continue in his absence, he left. About 15 minutes later he returned to sit in the public gallery before returning to his seat.

Later in the hearing he again made reference to the issues before the court being

“deeply distressing and emotional”. As the hearing progressed he became progressively more animated and agitated: his final submissions indicated that this was at least in part because he considered that the Court should be more interested in perjury and perverting the course of public justice than with the continuation of the GCRO.

For reasons that I will explain below, I do not regard this application as remotely straightforward even though I accept without hesitation that Mr Gray is very likely to bring civil claims, including at least some that are unmeritorious, if the GCRO is lifted. I base this conclusion partly on the specific evidence that I have identified at

The position is exacerbated by the fact that, although Mr Gray is undoubtedly clever and has acquired knowledge about the criminal law and his rights, he is often seriously mistaken in his understanding. A paradigm example is his belief that either the Judge or prosecuting counsel who were involved in the case against him on 30 September 2015 had a duty, let alone an “absolute duty” to report the police officers who had appeared as prosecution witnesses to the police for independent investigation with a view to their prosecution for perjury. His apparently complete lack of appreciation that neither the Judge nor prosecuting counsel were under such a duty coloured the entire course of his sequential complaints that I have outlined at [42] above. He is quite wrong in his belief that a failure to prosecute him for making false allegations means or implies that his allegations are accepted or proved to be true. He is also quite wrong to suggest that, because Counsel for the Applicant in this application has not referred him to the police, Counsel is colluding in the offence of perverting public justice. The suggestion is, frankly, absurd and betrays a complete misunderstanding of the role of Counsel in proceedings such as these.

Unless something changes, the combination of these factors makes it highly likely, if not inevitable, that Mr Gray will come into conflict with other members of the public, police and others involved in the administration of justice, including Judges. As things stand, Mr Gray will continue to cause “kerfuffle” which will tend to escalate out of all reasonable proportion. The incident at the employment agency on 18 December 2017 is a good example of this tendency: a disagreement about whether Mr Gray had been misled about the immediate availability of work was interpreted by him as criminal harassment that led to the police being called with the almost inevitable complaints of corruption and perverting the course of public justice that followed. Having read the transcript, my reaction is that the officers gave a logical and restrained explanation why they did not regard what they understood to have happened as criminal harassment but that Mr Gray was so animated and agitated that he was unable to see the sense of what the officers were proposing.

It follows that I accept the applicant’s submission that the evidence suggests an unchanged view of the world where Mr Gray considers himself to be the victim of a multi-agency conspiracy aimed at denying him his rights and victimising him. I also accept, on the basis of the evidence including that which I have summarised above, that his state of mind is such that he adopts a “scattergun” approach when selecting his targets for complaint. There is obviously a risk that, if the GCRO is removed, he may be unable to restrain himself from adopting a scattergun approach to civil claims. That risk is shown by the number and types of allegations being made by Mr Gray during the period of the extension of the GCRO, both of which are extreme.

However, this does not paint the whole picture for a Court charged with determining whether it is appropriate to extend the GCRO for a yet further period. I do not have the benefit of medical evidence, but I have no hesitation in concluding that the mindset revealed by the evidence is way beyond normal and is now a manifestation of serious and complex mental health issues which will only be reinforced or prolonged by a further extension of the GCRO. The Court does not have the resources or the power on an application such as this to intervene or to cause steps to be taken that might address the underlying problem; but what seems certain is that, just as Mr Gray is convinced of the existence of a multi-agency conspiracy, that conviction can only hope to be addressed and ameliorated, if at all, by a multi-agency response. That said, as I have made clear, I do not think that Mr Gray is able to restrain himself. That does not mean that he is not responsible for his actions; but it is a feature to be borne in mind when considering whether a GCRO is an appropriate response to the social and resourcing problem that he presents.

Second, it is quite clear that Mr Gray is not going to go away. If unable to bring civil proceedings he will simply continue the conflict whenever he comes into contact with those who he considers abuse positions of power, however great or modest their powers may be. This will manifest itself in incidents of “kerfuffle” and subsequent escalation and will generate a continuation of a flow of complaints as has been the case since the extension of the GCRO. One possible advantage of civil proceedings is the possibility, despite the difficulties he has outlined, that Mr Gray might gain access to proper legal advice. Whether he would take it is another matter; but it is clear that

Third, I accept that the effect of the GCRO has gone beyond being a mere permission filter and has effectively imposed a complete ban on Mr Gray’s ability to bring proceedings. This is the point that concerned Warby J: see [21] above. Warby J was hampered by the absence of any evidence on the point, as he made clear at [51] of his judgment. The position today is different in two respects. First, on the evidence that is available to me, I accept that Mr Gray is on benefits such that the fee for an application for permission consumes the great majority of a month’s income. On his evidence, there remains equity in his house; but it is not obvious how a person on benefits might raise cash on the basis of relatively modest equity in a house that is already subject to at least one charging order. I therefore give weight to his assertion that he cannot afford to bring an application. Second, the fact that he has not brought an application during the period of the extension demands an explanation given my finding that Mr Gray would bring proceedings if he could. While the extended GCRO is conventional in form, the only explanation that presents itself in the current state of the evidence is that it presents an effectively absolute bar to Mr Gray. Apart from lack of means, no other explanation for this effect is available. I am therefore persuaded on the evidence that is available to me that Mr Gray is right to assert that the GCRO acts as an absolute bar to him bringing proceedings.

In the different circumstances prevailing when Warby J made his orders, he provided the imaginative but partial relief of making it unnecessary for Mr Gray to pay a GCRO application fee as a pre-requisite to challenging the debarring effect of Regulation 19 of the Civil Proceedings Fees Order 2008 by Judicial Review. But Warby J clearly recognised that this was a partial solution. Two years on, it seems to me that it does not fully meet the problem because it requires Mr Gray to undertake uncertain judicial review proceedings if he wishes to challenge the effective financial bar that the GCRO imposes on him. Since that has not happened I have to assess whether the continuation of the GCRO is appropriate on the assumption that Regulation 19 is lawful and effective.

Fourth, I have referred to the risk that, if free to bring civil proceedings, Mr Gray may bring proceedings or make applications that are unmeritorious. However, the past history of Mr Gray’s litigation includes two cases where his claims were substantiated, even if the victory in front of HHJ Cotter QC was pyrrhic. I am not in a position to make, and I do not make, a finding that Mr Gray would have a good claim based on any of the materials before the Court for this application. But I am not persuaded that there is no substance in any of his complaints or potential claims.

One response to this is to point to the incidence of costs that have been awarded against Mr Gray, which far outweigh the damages he has recovered in the past. That, however, is a consequence of the costs of litigation and does not provide an answer to whether Mr Gray should be able to bring claims in the future. In addition, although not a perfect solution, if Mr Gray has costs orders made against him, there is at present the prospect of securing a charge on the dwindling equity in his house and eventual recovery. This should act as a restraining influence upon Mr Gray, though there is no evidence at present that it does.

The removal of the GCRO does not remove all protection from prospective defendants. If Mr Gray brings claims that are manifestly ill-founded, it is open a defendant to apply to strike out or for summary judgment and to press for further findings of TWM; and if in the course of claims that are not subject to summary dismissal he brings applications that are TWM, the Court will record that fact.

It is not the intended purpose of a CRO that it should act as a total ban preventing the restrained person from bringing proceedings: it is intended to be what has been described as a permission filter. On my findings, this GCRO is therefore exceeding its intended function, and in doing so now represents a serious incursion upon Mr Gray’s right to bring proceedings to vindicate his civil rights. It should not be thought that in saying this I am casting doubt on either the original making of the GCRO by Teare J or its extension by Warby J. On the contrary, though it is not necessary or particularly relevant for me to say so, my independent view is that those orders were properly and rightly made in the circumstances then prevailing.

Looking at the matter afresh in the light of the evidence that is available to me, however, I am not satisfied that it is appropriate to continue the GCRO for a further period. In my judgment, when one balances the risk of stifling a well-founded claim against the risk that Mr Gray may make claims or applications that are unmeritorious, the balance at this stage just tilts in favour of bringing the present GCRO to an end. Mr Gray should, however, be under no illusions that if he takes this opportunity to reach for the scattergun or to issue proceedings that are clearly unmeritorious, it is highly probable the Court will, either of its own motion or on application impose a further CRO of some description or seek the involvement of the Attorney General under the provisions of s. 42 of the Senior Courts Act 1981.

The draft judgment in this case was sent to Mr Gray and to Counsel on Tuesday, 16 July 2019. Subject to typos it was in the form of [1]-[60] above and the conclusion below. It contained [13], which recorded the information about the GCRO Application Fee being £255. This information had been provided during the hearing and was the subject of submissions from the Applicant on two separate occasions. On the first, just before the short adjournment, Counsel “wondered” whether the appropriate fee was a fee of £55 pursuant to paragraph 1.8 of the Fees Order. He was asked to deal with the point after the short adjournment: the exchange is recorded at page 67 of the transcript. After the short adjournment, Counsel returned to the point at page 75 of the transcript, when he concentrated on the advice that a person would be given by the Court on making an application and frankly stated that he did not know what advice about the amount of the fee would be given. And he concluded that it may be that there were at lest two different fees. The transcript is not entirely clear as to what he said, but the gist was that he was not in a position to make further submissions.

It was on this state of the evidence that I chose to accept the information I had about what advice Mr Gray would be given. However, in response to the draft judgment, the Applicant renewed his submission that the appropriate paragraph of Schedule 1 of the Fees Order is paragraph 1.8(a), which prescribes a fee of £55 as it would be “on an application for permission to issue proceedings.” On that basis, paragraph 2.4(a), which prescribes a fee of £255 “On an application on notice where no other fee is specified…” would not apply. Counsel submitted two documents, one issued by the Ministry of Justice and one by HMCTS, which replicate the general terms of the order but do not otherwise appear to take matters further.

It is regrettable that this note of submissions was not provided, if the submission was going to be made, promptly after the hearing – particularly in a case of this sensitivity – for a number of reasons:

In these circumstances, I consider that the most important thing is what Mr Gray would be told if he came to the Court to issue an application. I have no reason to doubt Mr Gray’s account of his conversation, which is consistent with the information provided during the hearing, and no means of checking or confirming it before handing down judgment on the morning of 22 July 2019.

However, I have also undertaken the invidious exercise of trying to work out whether my decision as set out in the paragraphs that precede this addendum would have been the same or different if I had reached and written my judgment on the basis that the GCRO Application Fee that Mr Gray would be charged would be £55. The difference is material because a fee of £55 represents the bulk of a week’s benefit whereas a fee of £255 represents the bulk of a month’s. Clearly that affects consideration of Mr

My conclusion is that I would still have come to the conclusion that the effect of the requirement to pay the fee up front had, in Mr Gray’s case, the consequence that the GCRO was doing more than acting as a permission filter and was acting as a total ban, for the reasons (duly modified) set out above. If I had thought that Mr Gray would be asked to pay £55 rather than £255 per application for permission, I would have assessed the case as being close to the line but still just favouring the decision not to extend the GCRO.

The GCRO is not extended further and will cease to have effect on the handing down of this judgment.