Rules and Procedure for Appealing Civil Restraint Orders
| Author | David Giles/Maurice Rifat |
| Pages | 119-137 |
Chapter 8
RULES AND PROCEDURE FOR APPEALING CIVIL RESTRAINT ORDERS
8.1 Considering the litigious character of those who are made subject to civil restraint orders, it is not surprising that attempts to appeal civil restraint orders are made. Indeed, individuals predisposed to vexatious litigation may be interested in the observation of the Court of Appeal in M A Holdings Ltd v George Wimpey UK Ltd
8.2 There are specific rules dealing with appeals from civil restraint orders which are set out in Practice Direction 3C of the Civil Procedure Rules.
8.3 The party against whom the civil restraint order (whether it be a limited, extended or general order) is made can apply for permission to appeal and if permission to appeal is granted may appeal the order. Unlike applications to amend or discharge the order, the permission of the judge identified in the order is not required to apply for permission to appeal.
However, if an application for permission to amend or discharge is refused, any application for permission to appeal must be made in writing and will be determined on paper without a hearing.
1 M A Holdings Ltd v George Wimpey UK Ltd [2008] EWCA Civ 12.
2 See CPR PD 3C.
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8.4 An application for permission to apply to discharge a civil restraint order is different from an application for permission to appeal against the making of the civil restraint order. It is implicit in an application to discharge the order that the applicant accepts the order was correctly made but wishes, perhaps in the light of changed circumstances, to have it discharged. That said, the distinction between an application to discharge an order and to appeal the order can be blurred if the ground on which discharge is sought is that the judge who made the order was misled, innocently or otherwise, about some material fact. However, if the application for permission to appeal the refusal of the application to discharge the civil restraint order is refused, any application for permission to appeal the refusal of that application must be made in writing and will be decided on paper without a hearing.
8.5 Presumably, although Practice Direction 3C of the Civil Procedure Rules does not prescribe a time limit for the written application for permission to appeal the refusal of the application for permission to apply to discharge the civil restraint order, the application will have to be made within 21 days from the date of the decision to refuse permission to apply to discharge the civil restraint order, and if that application for permission to appeal is refused it may be possible to seek permission to appeal the refusal from the appeal court. Clearly, that latter option will not be open to the party where the civil restraint order was an extended or general civil restraint order made by a judge of the Court of Appeal and the designated appeal judge is a Lord Justice of Appeal.
8.6 The requirement that a person subject to a civil restraint order who wishes to apply to amend the order must first seek permission of the judge identified in the order before making such an application may be circumvented by the party applying for permission to appeal the order, an application for which the permission of the judge identified in the order is not required. The possibility for that is apparent from section 7 of the appellant’s notice Form N161, which asks the appellant what he is asking the appeal court to do and sets out two alternatives: to set aside the order or to vary the order and to substitute another version of the order. As discussed in Chapter 7, the difference between applying to amend an order and applying to vary an order and substitute an order in different terms can be hard to draw, and the two notions, of amendment and variation of an order, can overlap. If an application to vary the civil restraint order can be made through the appellant’s notice being submitted to the appeal court without first obtaining the permission of the judge identified in the order, and if an application to vary the civil restraint order is essentially the same as an
application to amend a civil restraint order, the requirement for prior permission to apply to amend a civil restraint order is illusory.
8.7 However, if the party subject to the civil restraint order presents his application to amend the order as an application for permission to appeal against the order, the requirement that an application for permission to apply for amendment of the civil restraint order be notified to the other party is not entirely negated.
8.8 This is because of the requirement that a copy of the appellant’s notice must be served on the respondent as soon as practicable, and in any event not later than 7 days after it is filed.
8.9 Nonetheless, for the party who has been made subject to a civil restraint order, the procedure of applying for permission to appeal the civil restraint order may be attractive, and preferable to applying to the judge identified in the order for permission to apply to amend the order. Not only can the party request the lower court judge’s permission to appeal as an oral application at the conclusion of the hearing, he can also, if permission is refused, file an appellant’s notice with the appeal court and apply for permission in that notice. If permission is refused without a hearing, the party can request an oral hearing of his application, unless when refusing permission to appeal without a hearing, the court orders that he may not request the decision to be reconsidered at a hearing.
8.10 Part 52 of the Civil Procedure Rules sets out the general procedure for appealing orders which is equally applicable to appeals against the decision to make a civil restraint order. If a party has applied for a civil restraint order to be made against another party, and the application has been
3 CPR rule 52.4(3).
4 CPR rule 52.4(4A).
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refused, that party could apply for permission to appeal against the refusal to make the order and if permission to appeal was granted to appeal against the refusal to make a civil restraint order. This chapter is, however, mostly concerned with appeals brought by the party against whom the order was made.
8.11 As with all appeals under Part 52 of the Civil Procedure Rules, the procedural process is twofold. Firstly, the party who is subject to a civil restraint order must apply for permission to appeal.
SEEKING PERMISSION TO APPEAL
8.12 Under rule 52.3(2) of the Civil Procedure Rules, permission to appeal any type of civil restraint order may be sought from the lower court (the court which granted the civil restraint order) or from the appeal court. Should the lower court refuse to grant permission to appeal, a further application for permission to appeal can be made to the appeal court.
8.13 Applications for permission to appeal made in the lower court are usually made orally at the end of the hearing in which the civil restraint order was granted. If the subject of the civil restraint order requires more time to prepare an application for permission to appeal, the lower court may adjourn the application for permission to appeal to be heard on another date.
8.14 Should the lower court refuse to grant permission to appeal the civil restraint order then the subject of the civil restraint order may apply for permission to appeal in writing to the appeal court. This application for permission must be made in the form of an appellant’s notice (Form N161). As noted above, the permission of the judge identified in the order is not a prerequisite for applying for permission to appeal.
8.15 Thus, although there is no...
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