Case Management

AuthorDavid Giles/Maurice Rifat
Pages83-92

Chapter 6


CASE MANAGEMENT

6.1 Quite apart from considering whether to grant an application under the Civil Procedure Rules for either a limited, extended or general civil restraint order, the Civil Procedure Rules identify four instances where the court must, regardless of whether there is a specific application brought by a party seeking a civil restraint order, consider whether to make a civil restraint order if it considers that a claim or application is totally without merit.

TOTALLY WITHOUT MERIT CERTIFICATION

6.2 Firstly, rule 3.3 of the Civil Procedure Rules sets out the court’s powers to make orders of its own initiative. Rule 3.3(7) provides that if the court of its own initiative strikes out a statement of case (statement of case includes part of a statement of case) or dismisses an application (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the claim or application is totally without merit, the court’s order must record that fact, and the court must at the same time consider whether it is appropriate to make a civil restraint order.

6.3 Secondly, rule 3.4 of the Civil Procedure Rules sets out the court’s powers to strike out statements of case (statement of case includes part of a statement of case). By rule 3.4(2)(a), the court may strike out a statement of case if it appears to disclose no reasonable grounds for bringing the claim. By rule 3.4(2)(b), the court may strike out the statement of case if it is an abuse of the court’s process or would otherwise obstruct the just disposal of the proceedings.

84 Vexatious Litigants and Civil Restraint Orders

6.4 Rule 3.3(6) of the Civil Procedure Rules provides that if the court strikes out a claimant’s statement of case (statement of case includes part of a statement of case) and it considers that the claim is totally without merit, the court’s order must record that fact, and the court must at the same time consider whether it is appropriate to make a civil restraint order.

6.5 Thirdly, rule 23.12 of the Civil Procedure Rules provides that if the court dismisses an application (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the application is totally without merit, the court’s order must record that fact, and at the same time the court must consider whether it is appropriate to make a civil restraint order.

6.6 Fourthly, rule 52.10 of the Civil Procedure Rules sets out the appeal court’s powers. It provides that if the appeal court refuses an application for permission to appeal or strikes out an appellant’s notice, or dismisses an appeal, and it considers that the application, the appellant’s notice or the appeal is totally without merit, the provisions of paragraph (6) must be complied with.

6.7 Rule 52.10(6) of the Civil Procedure Rules provides that where paragraph (5) applies, the court’s order must record the fact that it considers the application, the appellant’s notice or the appeal to be totally without merit; and the court must at the same time consider whether it is appropriate to make a civil restraint order.

FILTERING OUT OF THE TOTALLY WITHOUT MERIT

6.8 Practice Direction 3A of the Civil Procedure Rules explains how the court, in the exercise of its case management powers, could deal with claims which fall within rule 3.4(2)(a) or (b). Paragraph 1.4 of Practice Direction 3A gives examples of particulars of claim which would disclose no reasonable grounds for bringing the claim such as those which set out no facts indicating what the claim is about, those which are incoherent and make no sense or those which contain a coherent set of facts but the set of facts do not, even if true, give rise to a recognised legal cause of action. Paragraph 1.5 states that a claim may fall within rule 3.4(2)(b) if the claim is vexatious, scurrilous or obviously ill founded.

6.9 Practice Direction 3A of the Civil Procedure Rules then deals, at paragraph 2.1, with what a court officer, faced with a request to issue a claim which appears to fall within rule 3.4(2)(a) or (b), should do. The court officer should issue the claim but, before returning a copy of the issued claim to the claimant or taking any step to serve the defendant, he may consult a judge (as he is empowered to do by rule 3.2). If so consulted the judge ‘may on his own initiative make an immediate order designed to ensure that the claim is disposed of or (as the case may be) proceeds in a way that accords with the rules’.

6.10 Practice Direction 3A of the Civil Procedure Rules is a useful procedure for the court and the judge faced with a claim which appears, at least on its face, to be totally without merit either because it sets out no facts indicating what the claim is about, or it is...

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