Supperstone v Hurst and another; [2009] EWHC 1271 (Ch); [2009] WLR (D) 176

PRACTICE — Vexatious litigant — Inherent jurisdiction of court — Extended civil restraint order — Application to restrain person subject to order from engaging in any form of mere communication with person for whose benefit order made — Whether power to make order — CPR r 3.11, Practice Direction 3C supplementing Pt 3

Supperstone v Hurst and another

[2009] EWHC 1271 (Ch); [2009] WLR (D) 176

Ch D: Bernard Livesey QC sitting as a deputy High Court judge: 9 June 2009

The court did not have jurisdiction to make an extended civil restraint order which prevented the person subject to the order from engaging in any form of mere communication with the person for whose benefit the order was made.

Bernard Livesey QC, sitting as a deputy judge of the Chancery Division, so held when granting an application by Antony Peter Supperstone, the trustee in bankruptcy of the first respondent, Robert Hurst, made pursuant to CPR r 3.11, the accompanying practice direction and the court’s inherent jurisdiction, for an extended civil restraint order against both the first respondent and his wife, Ann Hurst, the second respondent.

The extended civil restraint order sought to restrain the respondents (i) from making any claims against the trustee and his former firm and solicitors where such claims arose out of any matter relating to the bankruptcy proceedings or the conduct of the trustee; and (ii) from communicating with the trustee, his former firm, solicitors or any partner, former partner, employee or former employee thereof, by telephone, fax, or e-mail, save for certain limited purposes, without first obtaining the permission of a judge of the Chancery Division.

BERNARD LIVESEY QC said that the wording of s 3 of Practice Direction 3C supplementing CPR Pt 3 did not appear to empower the court to make an order under the extended civil restraint order jurisdiction which prevented the person subject to the order from engaging in any form of mere communication with the person for whose benefit the order was made. The trustee argued that the jurisdiction to grant relief in order to protect against the actions of a vexatious litigant was very wide and, it was submitted, sufficient to enable the court to grant relief in the form requested; that the correspondence in question would normally be a precursor to litigation, or sent in anticipation of litigation and the court ought therefore to be willing to restrain the respondents to enable the court to exercise supervisory control over their litigation conduct. His Lordship was unable to accept that the court’s power under the extended civil restraint order procedure extended to enable it to curtail the entitlement of the respondents, or any defendant to an extended civil restraint order, to communicate with whomsoever he or she wished. The extended civil restraint order procedure was originally founded on the need to prevent an abuse of its process and not on the equally desirable objective of preventing harassment to persons. The Prevention of Harassment Act 1997 was designed to provide protection to individuals against some forms of pure harassment. His Lordship did not suggest that it would be an appropriate source of relief in the present case but the existence of a specific provision like the 1997 Act led him to doubt whether it would be appropriate to stretch the inherent jurisdiction of the court beyond the bounds set by existing case law. The trustee had established much more than the minimum qualification for the making of an extended civil restraint order and his Lordship concluded that there was a real risk that without making the orders sought the respondents would continue to pursue proceedings which were vexatious or without merit.

Appearances: Richard Fisher (instructed by Taylor Wessing LLP) for the applicant; the first respondent in person; the second respondent did not appear and was not represented.

Reported by: Celia Fox, barrister