The Chief Constable of Avon and Somerset Constabulary v Benjamin Gray
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 23 November 2016 |
| Neutral Citation | [2016] EWHC 2998 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: CO2BS071 |
| Date | 23 November 2016 |
[2016] EWHC 2998 (QB)
Mr Justice Warby
Case No: CO2BS071
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sitting in Bristol
Robert Talalay (instructed by Legal Services Directorate, Avon and Somerset Constabulary) for the Applicant
The respondent in person
Hearing date: 17 November 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 17 November 2016 I granted an application made by the Chief Constable of Avon & Somerset Constabulary for an order extending a General Civil Restraint Order ("GCRO") in respect of the respondent, Benjamin Gray. I extended the order for two years from the date of my decision. These are my reasons for doing so.
The CRO regime
Civil Restraint Orders, or CROs, prohibit individuals from issuing claims or making applications without the permission of the court. The standard form of order provides that respondent is "restrained from issuing any claim or making any application … without first obtaining the permission of [a named Judge, and if unavailable some other judge]". Provision is made for any application for permission, or any application to amend or discharge the order, to be notified to the other party in writing, giving them at least 7 days in which to respond; only then can the applicant seek the court's permission. That is to be done in writing, setting out the nature and grounds of the application. The application is determined without a hearing.
There are three broad categories of CRO. The basic or "limited" CRO restrains the making of any further application in the proceedings in which it is made. An Extended CRO ("ECRO") imposes restraint upon the issue of claims or the making of applications in specified courts "concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made." A GCRO restricts the issuing of claims or the making of applications in any courts, or in specified courts, in any form of proceedings.
The grant of CROs is governed by the Civil Procedure Rules, PD3C. Paragraph 4.1 sets out who may make a GCRO, and prescribes the threshold requirements:
"4.1 A general civil restraint order may be made by —
(1) a judge of the Court of Appeal;
(2) a judge of the High Court; or
(3) a Designated Civil Judge or their appointed deputy in the County 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."
PD3C provides for the duration of a GCRO to be extended:
"4.10 The court may extend the duration of a general civil restraint order, if it considers it appropriate to do so, but it must not be extended for a period greater than 2 years on any given occasion."
A court which concludes that a claim or application is totally without merit ("TWM") has a duty to record that fact, and to consider making a CRO: see, eg CPR 23.12. But a party to proceedings may apply for a CRO, as the Chief Constable has done in this case.
In view of some of the arguments advanced by Mr Gray in this case it is worth making five points about these provisions.
(1) First, it is not a precondition for granting a GCRO that the person against whom it is made has brought claims which are. TWM. A GCRO may be made against a person who persists in issuing claims which are TWM, or someone who persists in making applications which are TWM.
(2) Secondly, the threshold requirements in PD3C 4.1 need to be satisfied before a GCRO is made. But the test for the grant of an extension is different: it is whether the court "considers it appropriate". This plainly makes sense, as a person who has already been subject to a GCRO will in principle have had no opportunity to issue any TWM claim or application, other than an application for permission to proceed, or to vary or discharge the GCRO.
(3) Thirdly, when a Judge has determined that a claim or application is TWM, the circumstances in which it will be legitimate to contest that determination in subsequent proceedings before a Court at the same level of jurisdiction are limited. The CPR provide that those against whom orders are made on the court's own initiative, or in their absence, may apply to vary or set aside the order: see, eg, CPR rr 3.3(5) and (6); 23.8 —23.11 & PD23 11.2. Otherwise, if the proceedings are between the same parties, there will be issue estoppel; and in any case, the correct means of challenge will normally be by way of appeal.
(4) Fourthly, as Mr Gray has emphasised, a CRO interferes with the right of access to a court. That is a fundamental civil right. The court must be alive to that, and wary of too readily imposing restrictions upon the right of access. Restrictions should be imposed only if and to the extent that they are necessary in the pursuit of a legitimate aim. In the case of a CRO the legitimate aims in view include the protection of the rights of others, to be free from the waste of time and precious resources that flow from the bringing of unfounded claims and applications. The scarce publicly funded resources of the court also require protection against such waste. These are considerations which justify the existence of the CRO regime.
(5) In that context, the fifth point is important. A GCRO is not, as some of Mr Gray's submissions would suggest, a bar on the bringing of any proceedings. It imposes a permission filter. Permission filters are a well-established feature of civil and criminal procedure. They are most common as a way of controlling the use of appeal mechanisms. But permission is required to initiate a claim for judicial review. The court would not refuse permission to bring a claim of substance with arguable merit. What it might do, if presented with such a case, is to give directions to ensure that any untenable aspects of the claim were removed and to ensure that all remaining claims were conducted fairly and efficiently, did not consume disproportionate resources, and were otherwise dealt with in accordance with the overriding objective.
Mr Gray's GCRO history
Mr Gray is a litigious individual, who has been the subject of GCROs for most of the last 7 years, and for some time before that. The papers suggest that a GCRO was imposed by Mitting J in 2009. But the direct evidence before me covers only the last four GCROs against Mr Gray.
The first of those was made on 11 January 2010, by MacDuff J, sitting in the High Court, Queen's Bench Division. MacDuff J dealt with an application by Mr Gray for permission to appeal against an order of Master Foster, in a claim brought by Mr Gray against the Chief Constable (HQ 08 X 03503). The Judge refused that application as TWM. The Judge considered seven other cases in which Mr Gray was claimant or appellant. Most but not all of those involved the Chief Constable. The Judge concluded that the threshold for granting a GCRO was met and that unless restrained Mr Gray would "issue further claims, applications, appeals and/or other processes which are wholly without merit." The GCRO made by MacDuff J prohibited Mr Gray from issuing any new proceedings against any defendant in the High Court or county court, "or from issuing any application, appeal or process in this action or in any other action in any Court" without permission.
MacDuff J gave a fully reasoned written judgment in which he recorded details of some of the further cases he had considered. It is unnecessary to set out the details in this judgment. It suffices to say the following. The cases included two others brought against the present applicant: (1) HQ 09X 03911, in which Mr Gray's claim against the Chief Constable was struck out by the Master and MacDuff J refused permission to appeal, certifying the appeal as TWM; (2) HQ 09X 03912, which followed the same course. The cases considered by MacDuff J also included a claim issued by Mr Gray in September 2009 against a Practice Manager at Mr Gray's GP surgery named Steven Hartnell. The claim sought remedies for alleged negligent misstatement and libel, over a note in the medical records relating to Mr Gray. That claim was struck out by the Master, and an application to reinstate it was refused. Macduff J dismissed as TWM Mr Gray's applications for permission to appeal against those decisions. He held that this claim was "totally without merit from the very outset".
On 20 March 2013 Silber J, sitting in the Queen's Bench Division, Administrative Court, made a further GCRO against Mr Gray. The proposed claim was for judicial review against Bristol Crown Court, the Crown Prosecution Service, and the Chief Constable. The application for permission was made outside the three-month limit, and was not prompt. It appears that Mr Gray had waited until after the expiry of the GCRO granted by MacDuff J. Silber J pointed out that he had not needed to do so. He could have sought permission from MacDuff J. Silber J concluded that the claim was not only out of time, it was also TWM, and he prohibited Mr Gray for two years from issuing any claim or making any application in the Divisional Court or Administrative Court of the Queen's Bench Division, without the permission of Ouseley J or a nominated Queen's Bench Judge.
On 15 July 2013 Swift J, sitting in the Administrative Court, heard an application by Mr Gray to set aside the GCRO granted by Silber J. She refused that application and instead extended the GCRO, with modifications, for two years from the date of her decision.
On 4 November 2014...
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