Sir, you are vexing me!

Family lawyers are likely to be familiar with a s91(14) order (c91(14) Children Act 1989), which prohibits a person from making an application for a s8 “child arrangements order” without the prior permission of the court. But less familiar is the power of the Family Court to issue Civil Restraint Orders via the FPR, under an entirely parallel scheme to that set out in the CPR.

Plainly where s91(14) potentially applies there is little need for recourse to a CRO, for which the pre-requisites are more formulaic – so when might it be used? And are there any examples of the Family Court exercising such jurisdiction? Well, there are – but they are few and far between. Here is what I turned up – no doubt there are more examples which have not made BAILII or the law reports.

Currey v Currey [2006] EWCA Civ 1338 (18 October 2006) was a so-called “big money” case in which the principle issue was whether the wife should pay a costs allowance towards the husband’s legal costs to enable him to be represented in variation proceedings. Prior to that judgment it is recorded that as a result of various applications made by the husband against solicitors who had acted for the wife and children in the family proceedings a civil restraint order had been made. Unfortunately the judgment relating to the CRO is not available on BAILLI and although the existence of it was argued by the wife to be one reason why no costs allowance order should be made, the Court of Appeal determined the matter on other grounds.

A (A Child), Re [2009] EWCA Civ 1249 (10 November 2009) is a permission application in respect of the dismissal of 18 applications in respect of children act proceedings by Munby J (as he then was). There had been in those proceedings (relating to a boy who was by then 8 years old) some 80 applications. Wilson LJ concluded that 13 of the dismissed applications were indeed unarguable and totally without merit. He opined :

Why has the father’s forensic misbehaviour, which has now developed into open contempts of court, for example in the course of his application to Munby J for permission to appeal, been of so gross a character? I do not believe that it is some simple addiction to litigation which afflicts him; and I cannot believe that the legacy of his feelings about the mother, following the breakdown of their relationship seven years ago, can still be the driver of it. I also consider that it might be grossly unfair to Dr Pelling to point the finger at him. The court is not privy to the advice which he has given to the father and, even were his advice to have been as malign as to persevere with all the litigation to the extent demonstrated, this father has an intelligence which would have rendered him more than able to override such advice.

However the Judge felt precluded by CPR 52.10(5) of the CPR (which covers such appeals) from making a general denomination of the application for permission to appeal as being “totally without merit”, and therefore no CRO flowed. He went on to say though that :

In case, however, any further application by the father to this court were to fail, he would be wise to make prior acquaintanceship with the provisions for extended civil restraint orders in paragraph 3 of Practice Direction C appended to Part 3 of the Rules. For it is possible that the court would want to consider making such an order against him. 

In Hope (aka Lewis, Formerly Krejci) v Krejci & Ors [2012] EWHC 1780 (Fam) (29 June 2012) Mostyn J, having previously dealt with applications for financial remedy, dealt with subsequent applications by the wife, where his orders in her favour had effectively been frustrated. For our purposes it is sufficient to know that the sums were large, that overseas trusts were involved, and that it was all very very *yawn* complicated, and that things had not worked out as planned by the judge. Mostyn J, always able to come up with a novel and striking descriptor considered the Husband to have a “modus operandi of complete turbidity” (I had to look it up too). The wife had applied for an “innovative” form of order, that is she applied for an order made under the inherent jurisdiction rather than the statutory scheme. In essence the W sought an order restraining the H from making an application in another division of the High Court (an application for civil fraud against the W). It was suggested that because the facts underlying the alleged civil fraud had been determined by Mostyn J within the family proceedings (adversely to H) it was a contempt to pursue the matter again elsewhere and that the court’s Hadkinson jurisdiction should be invoked to prohibit it. Ultimately Mostyn J concluded that “it would be quite wrong to deploy my inherent powers to outflank the statutory scheme.” and refused the order.

In Maughan v Wilmot [2014] EWHC 1288 (Fam) (15 April 2014) the wife made an application for an extended CRO, which Mostyn J granted. The husband, one Captain Wilmot had made three applications, each dismissed by Mostyn J as unmeritorious, including allegations of corruption on the part of the Wife’s legal team. The wife herself had made three orders, necessitated by Captain Wilmot’s “extreme defiance” of the court’s orders. As Mostyn J set out an extended CRO

may only be made by a High Court Judge. An extended order, which is applied for here, may only be sought where a party has persistently made applications which are totally without merit. If the order is made the party against whom it is made:

“is restrained from making applications in any 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.”

Captain Wilmot had made two appeals which had been found to be totally without merit, and had suffered three refusals of permission to appeal on the same basis. Added to that were the three totally without merit applications that Mostyn J himself dismissed. He made the CRO, and an order for indemnity costs.

Those then are the only authorities I have been able to find on the topic of CROs in family proceedings. The Family Court Practice is of limited use also. It says only this in the notes to CPR 4.8 Power of the court to make CROs :

This provision follows the familiar provisions of CPR 1998 33.11. In family proceedings involving money, the authorities on the CPR 1998 r3.11 are likely to be of assistance. In proceedings involving children, it is submitted that the authorities on the interpretation of the CA 1989 s91(14) are likely to prove a more reliable guide.

There are of course many, many authorities dealing with the use of s91(14) – almost all of them appeals against the making of those “draconian” orders – many successful. It is long established that for s91(14) orders there need not have been a history of repeated prior unreasonable applications, for that jurisdiction is focused upon the welfare of the child. I wrote about s91(14) some years ago now (here) – not much has changed, there have been one or two subsequent authorities along the same lines.

There will be circumstances where, even in Children Act proceedings, the CRO jurisdiction may be triggered – in particular where multiple appeals (or Part 18 applications) are dismissed as totally without merit and the appellate court considers it necessary to put a stop to repeated applications there and then. Elsewhere, in financial remedy or other family proceedings, civil restraint orders are more likely to be available – albeit they will still rarely be necessary or proportionate.

It seems to me though, that there must be many cases where the prerequisites for a limited civil restraint order at least must be made out – and that there will likely be many more so in years to come. How many of those will result in civil restraint orders remains to be seen – but it is important to remember that the jurisdiction is not just one to be exercised on application – the FPR 2010 set out clearly the circumstances in which the judge is under a positive duty firstly to record the total absence of merit where it is found, and secondly to consider whether, in light of those findings an order should be made (in equivalent terms to the provisions in the CPR). Whilst my experience to date is that judges need to be reminded, even in civil proceedings, to log on their orders first, second and subsequent incidences of unmeritorious applications for some rainy day when all are despairing of an end to the ceaseless litigation.

2 thoughts on “Sir, you are vexing me!

  1. Not quite on this point, but another s91(14) type remedy – the President in K v K 2015 makes a “Grepe v Loam” order which in effect is the equivalent of a s91(14) order but for ancillary relief applications/appeals/variations.

    Worth reading for the footnote at the end, at which the President sets out in full the email that the former wife’s alleged lover is said to have sent to the husband who had always suspected her of adultery. (I will edit as though I were at ITV doing what they did to Raging Bull)

    I funned your wife in a hotel – and we funned 3 times that afternoon – what more do you want to know that you don’t already?” and “We funned lots and we both enjoyed it. What you going to do now?”

    The President in K v K also refers to the Supreme Court case of Ebert v Birch, which deals extensively with both Grepe v Loam and civil restraining orders

  2. I notice with interest that Captain Wilmot sent a telex – I did not know courts still had those wonderful old machines!

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