Amending or Discharging Civil Restraint Orders

AuthorDavid Giles/Maurice Rifat
Pages93-118

Chapter 7


AMENDING OR DISCHARGING CIVIL RESTRAINT ORDERS

7.1 The Civil Procedure Rules create various situations in which orders can be made with or without notice to one or more of the parties, or during or not during a hearing and, if during a hearing, in the absence of one or more or all the parties. The rules also set out various forms of procedures enabling parties to vary, amend, set aside, discharge or revoke orders, and to appeal orders.1

7.2 In this chapter, the procedural situations in which orders can be made in the absence of a party and the forms of procedure available for applying to vary, amend, set aside, discharge, revoke and stay orders will be reviewed and analysed in relation to civil restraint orders.

ORDERS MADE IN ABSENCE OF A PARTY

7.3 Under rule 3.3 of the Civil Procedure Rules, except where a rule or some other enactment provides otherwise, the court has power to make any order of its own initiative and, under rule 3.3(4), the court is empowered to make an order without holding a hearing or giving the parties the opportunity to make representations.

1 The meaning of to ‘vary’ or ‘amend’ in relation to an order is essentially the same, and the meaning of to ‘set aside’, ‘revoke’ or ‘discharge’ in relation to an order is also essentially the same. ‘Set aside’ can mean, according to the CPR Glossary, ‘cancelling’, which is presumably the same as or similar to ‘revoking’ or ‘discharging’. The Glossary has no guidance as to the meaning of ‘vary’ or ‘amend’, but any difference in meaning between the two words is difficult to discern.

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7.4 Rule 3.3(5)(b) of the Civil Procedure Rules requires an order made by the court of its own initiative and without notice to the parties to state on its face that the party affected by the order has the right to set aside, vary or stay the order.2Further, by rule 3.3(6) any application under rule 3.3(5) to set aside, vary or stay an order made by the court of its own initiative must be made within such period as the court may specify (presumably on the order) or where the court does not specify such a period, no later than 7 days after service of the order on the party making the application.

7.5 Under rule 23.8 of the Civil Procedure Rules, the court can deal with an application without a hearing if it considers that it is appropriate to do so.

7.6 Pursuant to rule 23.4 of the Civil Procedure Rules, the general rule is that a copy of an application must be served on each respondent; a copy of the application notice need not be served where a rule, practice direction or court order permits it.

7.7 Paragraph 3 of Practice Direction 23A of the Civil Procedure Rules states that an application may be dealt with without service of the application notice only where there is exceptional urgency, where the overriding objective is best furthered by doing so, by consent of all the parties, with the court’s permission, or where a court order, rule or practice direction permits.

7.8 In addition, paragraph 2.10 of Practice Direction 23A of the Civil Procedure Rules provides that where a date for a hearing has been fixed or for which a date is about to be fixed and a party wishes to make an application, but has not had sufficient time to serve the application notice, he should inform the other side and the court if possible in writing as soon as he can of the nature of and reason for the application and make the application orally at the hearing.

7.9 The possibility of a trial proceeding in the absence of a party is covered by rule 39.3 of the Civil Procedure Rules, which provides that a court can proceed in a party’s absence. Therefore, in addition to giving judgment against that party, or striking out that party’s claim and any

2 It is surprising how often the courts fail to comply with this requirement and fail to specify a period of time within which any application to set aside, vary or stay must be made, and the omission can be a ground for extending the time for making the application beyond the default period of 7 days after service of the order.

defence to counterclaim, orders can be made against that party in his absence which could if appropriate potentially include a civil restraint order.

7.10 Practice Direction 3C of the Civil Procedure Rules, which applies where the court is considering whether to make a civil restraint order, does not preclude the court from proceeding to make the order in the party’s absence or, where one party applies to make a civil restraint order against another party, without a copy of the application notice being served on the respondent.

7.11 Indeed, Practice Direction 3C of the Civil Procedure Rules expressly refers to the court being under a duty to consider whether a civil restraint order should be made where the court has struck out or dismissed an application or a claim, an application for permission to appeal, or an appellant’s notice or appeal, as being totally without merit.

7.12 Paragraph 5 of Practice Direction 3C of the Civil Procedure Rules simply states that the other party or parties to the proceedings may apply for a civil restraint order but the application must be made using the procedure in Part 23 unless the court otherwise directs and the application must specify which type of civil restraint order is sought. The Practice Direction does not stipulate that the application for a civil restraint order can only be made by issuing an application notice which must be served on the respondent and which must be dealt with at a hearing, notice of which must have been given to the respondent.

7.13 Thus, while the circumstances would surely be rare and extreme in which such a course was justified, the civil restraint order could be made without holding a hearing or giving the parties the opportunity to make representations as, for example, the court is empowered to so do under rule 3.3(4) of the Civil Procedure Rules, or without a copy of the application notice for the civil restraint order being served on the respondent or, under rule 23.8, the application for a civil restraint order could be dealt with without a hearing if the court considered that it was appropriate to do so.

7.14 The circumstances in which the court would seriously countenance considering whether to make a civil restraint order or dealing with an application for a civil restraint order against a party without holding a hearing of which the respondent had notice, are difficult to envisage, but in theory the court has that power.

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7.15 Rule 23.9 of the Civil Procedure Rules applies to applications made without a copy application notice being served and provides that the order must contain a statement of the right to set aside or vary the order under rule 23.10. It is improbable that the court would permit an application for a civil restraint order to be made without a copy of the application notice being served on the respondent, but the rules do not exclude an applicant for a civil restraint order attempting to rely on paragraph 3 of Practice Direction 23A and making the application without serving a copy of the application notice on the respondent. It is doubtful whether the court, faced with an application for civil restraint order without notice to the respondent, would decide the application in the respondent’s absence. Presumably, some considerable and exceptional degree of urgency would have to be demonstrated by the applicant before the court would hear the application in the respondent’s absence.

7.16 More likely, the civil restraint order would have been made after a hearing of which the party affected by the order had notice, either because he was the respondent to the application by application notice issued and served pursuant to Part 23 of the Civil Procedure Rules, or because the court was considering making such an order after a hearing of his application or claim. Indeed, in Collier v Williams,3the Court of Appeal warned against the risks of the courts dealing with important applications on paper and without a hearing. Such applications should be dealt with at a hearing to allow for full consideration of the issue and to test the arguments. In R (Kumar) v Secretary of State for Constitutional Affairs,4the Court of Appeal said that where the court was considering making a civil restraint order against the background of a complicated and lengthy history, it would be right to adjourn the matter to enable the party affected by the order time to prepare his response, but if the facts were clear and simple, it may be appropriate to proceed to make the order immediately.

7.17 However, even where the court was called upon to decide whether to make a civil restraint order as a result of an application notice being issued and served on the respondent and a hearing was held of which the respondent had notice but failed to attend, rule 23.11 of the Civil Procedure Rules provides that the court can proceed in his absence and make an order at the hearing.

3 Collier v Williams [2006] EWCA Civ 20.

4 R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990, [2007] 1
WLR 536.

7.18 Rule 39.3 of the Civil Procedure Rules governs the position where a party fails to attend the trial and provides that the court may proceed in the party’s absence. Rule 39.3(3) states that where a party does not attend the trial and the court makes a judgment or an order against him, the party may apply for the judgment or order made against him to be set aside. It is possible that a civil restraint order is amongst the types of orders which could be made at a...

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