Restricting the persistent litigant

The High Court case of Przemyslaw Nowak v Nursing and Midwifery Council & Guys and St Thomas’ NHS Foundation Trust [2013] EWHC 1932 (QB) has confirmed that the civil rights of a litigant in person can be restrained without infringing upon his Article 6 rights under the European Convention on Human Rights (‘ECHR’).

What right does Article 6 of ECHR confer?

Article 6 is often more commonly known as the right to a fair trial. It provides that an individual is entitled to a “fair and public hearing” in the determination of their civil rights or obligations or criminal charges. In order for Article 6 to be engaged, there must be a real and genuine dispute over rights and obligations that are recognised by domestic law.

Case Summary

The Claimant, Mr Nowak, was formerly employed as an anaesthetic nurse by the second defendant, Guy’s & St Thomas’ NHS Foundation Trust (‘the Trust’) and was registered with the first defendant, the Nursing and Midwifery Council (‘the NMC’).

Mr Nowak was dismissed by the Trust in January 2012 and was subsequently the subject of disciplinary proceedings before the NMC. His claim arose from alleged breaches of the Data Protection Act and Protection from Harassment Act and claims that he had suffered bullying and harassment at work, which caused him to become ill and take sick leave.

The NMC were investigating allegations that he had fraudulently claimed sick pay and participated in a training programme without the Trust’s permission. Mr Nowak issued proceedings in October 2012. He subsequently made no less than eight unsuccessful applications, all of which were made over a five month period and found to be wholly without merit.

Following failure to comply with an “Unless Order” made on 5 March 2013, Mr Nowak’s Claim Form was struck out on 22 March 2013. His application to set aside the Order of 5 March 2013 was unsuccessful. Even after the striking out of his claim, Mr Nowak made a number of subsequent applications to the Court, all of which were also dismissed.

Grounds for making a Restraint Order

Judicial findings show that cases which have been struck out are ‘totally without merit’ and can open the door to a restraint order.

Having ruled that a number of applications brought by Mr Nowak were totally without merit, Mr Justice Leggatt indicated that he was minded to make a civil restraint order. He considered whether a civil restraint order was appropriate in this case in accordance with Rule 2.3(1) of the Civil Procedure Rules. The rules prescribe that one of three types of civil restraint order may be made once the criteria set out in the Practice Directions have been met:

• A limited restraint order

• An extended restraint order

• General civil restraint order.

The rationale for making such order is that a litigant who makes claims or applications which have absolutely no merit, harms the administration of justice by wasting the limited time and resources of the Courts. Coupled with this, the right of access to the Court is not absolute. Consequently, Mr Justice Leggatt found that it is possible to impose restrictions on would-be litigants so long as such restrictions are not so wide ranging as to impair the rights protected by the ECHR and so long as the principle of proportionality is applied.

Mr Justice Leggatt considered whether making an extended civil restraint order would impinge upon Mr Nowak’s Article 6 rights, as he argued.

The decision

Mr Justice Leggatt decided that the Court had to satisfy itself of three questions before an extended civil restraint order could be made;

1. Satisfying the first ground set out in the Practice Direction, the Court found that the litigant had “persistently issued claims or made applications which are totally without merit”. Bhanmjee v Forsdick held that persistence in this context has an element of the “irrational refusal to take no for an answer”

2. Next the Court considered whether such an order was necessary to protect the Court’s process from abuse. To do this, the Judge undertook a risk assessment of the case

3. Having concluded there was a real risk of a further abuse of the Court’s process, the proportionality of making such an order was considered as the final ground and the least restrictive order necessary was applied.

In making his order, Mr Justice Leggatt determined that a wider order was required from the default extended restraint order and so directed that Mr Nowak obtain permission from the Court before issuing any claim or making any application against either defendant in relation to any matter or against either party in relation to any matter arising from the instant case.

The Court subsequently heard Mr Nowak’s appeal against a procedural decision of the NMC in which he was unsuccessful in his efforts.

Key points

This case reinforces the contention that restrictions on access to the Courts by vexatious or persistent litigants are compatible with Article 6.

Where a party to litigation issues a number of applications which are found to be totally without merit, particularly where the behaviour is persistent, a civil restraint order may be made restricting their access to the Courts, although each case will turn on its particular facts.

This case shows that whilst the Court recognises that careful consideration must be given not to fetter a person’s right to a fair trial, such right is not absolute. Essentially the making of a civil restraint order requires careful consideration of risk, necessity and proportionality. This case shows that the Court is willing to take such a measure if the appropriate criteria are met.

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