A claimant who had shown over a number of years a determination to prevent enforcement of a possession order by making numerous hopeless applications and appeals, and by issuing High Court proceedings, could properly be made subject to a civil restraint order.
In Odukoya and another v Topaz Finance Ltd (t/a Malanite Mortgages) [2023] EWHC 441 (Ch), Mr Peter Knox KC, sitting as a deputy High Court judge, granted an extended civil restraint order against the first claimant.
The regime for civil restraint orders is set out in Practice Direction 3C, made pursuant to CPR rule 3.11. Under paragraph 2.1 of the Practice Direction, a limited civil restraint order can be made by a judge of any court against a party who has made two or more applications which are totally without merit. Such a limited civil restraint order prevents the subject from making any further applications in the proceedings in which it was made without first obtaining specified permission.
An extended civil restraint order goes further and may be made in cases where a party has persistently issued or made applications which are totally without merit. An extended civil restraint order in the High Court restrains a person subject to the order from issuing claims or making applications in the High Court or the county court concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made (without first obtaining the permission of a judge identified in the order).
The claimants were husband and wife. They lived at Flat 3, 57 Christchurch Hill, London NW3 1JJ, which the first claimant owned under a long lease. On 28 March 2007 he granted a legal charge over the flat to Beacon Homeloans International. He fell into arrears, and on 22 August 2012 Beacon was granted possession of the flat, suspended as long as the first claimant paid the continuing instalments and the arrears of £3,665 at £125 per month.
The suspended order was breached and in January 2018 Beacon requested a warrant. As the defendant had taken an assignment of the legal charge, it became substituted for Beacon in the county court proceedings. On 16 July 2018 the defendant was granted permission to enforce the possession order, but this desire to enforce was then frustrated by a series of applications to the county court, all of which were dismissed.
A number of these were based upon the assertion that the material charge was void for non-compliance with s2(3) of the Law of Property Reform (Miscellaneous Provisions) Act 1989, which argument was based upon a misunderstanding as to the nature of the charge. Some of the applications were made with the assistance of an organisation called Mortgages Five Zero (MFZ).
Eventually, in January 2020 the county court made a limited civil restraint order to prevent further applications being issued in the county court. No doubt mindful of the limited restraint order, on 23 August 2021 the first claimant and his wife issued High Court proceedings which in effect sought to again argue that the charge was void. This was dismissed as being “totally without merit”, with a note in the preamble that it may be appropriate to make an extended civil restraint order. There then followed further applications and attempted applications in both the High Court and county court (some with the support of MFZ).
A warrant was executed only for the claimants to re-enter the flat, with the defendant then having to obtain a writ of restitution. Eventually (in February 2023), the High Court considered whether to make an extended civil restraint order. The court was satisfied that a deputy High Court judge had power to make such an order and, having considered the authorities, concluded that this was a case where such an order was merited as the first claimant had persistently issued claims that were totally without merit.
Elizabeth Haggerty is a barrister
