Banking Matters – May 2015
Print newsletter07/05/2015

“Fair wind” blows for banks in recent case
A recent case has raised two interesting legal issues for banks in a commercial context: […]
A recent case has raised two interesting legal issues for banks in a commercial context: how does a claimant sue for loss of a chance, and will a court imply a duty to obtain the best price reasonably obtainable in a forced sale?
The claim
In Rosserlane Consultants & Anor v Credit Suisse [1] the defendant bank provided a commercial loan to the claimants. The loan was to be repaid by the claimants following a sale of the claimant’s partnership business (Caspian Energy Group, CEG), whose main asset was an oilfield in Azerbaijan. The parties entered into a suite of loan and other contractual documentation, including a security agreement (which included the well-established duty of a mortgagee to take reasonable steps to obtain the best price reasonably obtainable in a forced sale situation) and a participation agreement (which did not). Under the participation agreement the bank was entitled to a share in the proceeds of any sale and had the right to force a sale of CEG if a sale had not been achieved by a longstop date. When two potential sales fell through and the loan was due to expire, the bank forced a sale and the claimants argued that the price was less than the value of CEG. The claimants sued for (a) loss of a chance to sell to a particular bidder at a greater price; and (b) breach of an implied duty on the bank to obtain the best price reasonably obtainable.
The decision
The claim failed on both counts.
So far as any loss of chance claim is concerned, there is always significant difficulty in proving what might have been. In some cases, such as where the wrongdoing of a defendant has deprived a claimant of property of value, claimants may be given the benefit of the doubt in any assessment of that value. There is “an evidential (i.e. rebuttable) presumption in favour of the claimant which gives him the benefit of any relevant doubt. The practical effect of that is to give the claimant a fair wind in establishing the value of what he has lost.” [2]. However that did not assist in this case. Here, there was no suggestion of wrongdoing on the part of the bank and access to the oilfield would have been required before the potential bidder on which the claimant’s argument was founded would have been prepared to value and purchase CEG. Unfortunately for the claimants’ case, evidence was adduced that access would not be granted to allow such valuation. The judge stated that “[T]he presumption of giving the Claimants in a case like this the benefit of the doubt does not to my mind extend to undermining the evidence that has actually been led” [3].
In relation to whether the bank owed any duty to obtain the best price reasonably obtainable, the court noted that this was a commercial arrangement between sophisticated parties and the bank. The bank had exercised its right of sale under the participation agreement, not any right under the security agreement, and the participation agreement was silent as to any duty on the bank in relation to the price on a forced sale. That silence had to be the starting point. Furthermore, on the particular facts, the claimants were under a specific duty in the participation agreement to use reasonable endeavours to procure a sale at the best price, and the lack of a reciprocal duty on the bank was seen, by the court, as highly significant.
WM Comment
As well as highlighting the evidential difficulties that claimants will face in any loss of chance claim, this case demonstrates how reluctant the courts will be to imply terms into contracts that have been freely negotiated between sophisticated parties. So far as lender clients are concerned, this may apply to any form of commercial lending and indeed to any non-standard or negotiated arrangements with any party.
In any commercial or non-standard context, parties must take care to get their contractual terms right. The courts can rarely be relied upon as a fall-back to correct a bad business deal.
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[1] Rosserlane Consultants Ltd (1) and Swinbrook Developments Ltd (2) v Credit Suisse International [2015] EWHC 384 (Ch)
[2] para. 230 (and Browning v Brachers [2005] EWCA Civ 753 at 205)
[3] para 234 (judgment emphasis)

Client Q&As
Client Question 1 I have obtained a money judgment against a defaulting borrower, but what […]
Client Question 1
I have obtained a money judgment against a defaulting borrower, but what happens next?
Walker Morris Answer
It’s all very well having obtained a court judgment against debtor, but how does that convert to payment of cold, hard cash? The truth is that, although you have overcome the most significant hurdle, there are still some practical steps to take and options to consider.
- Firstly, the debtor must be given the opportunity to pay, either within the time period specified by the order or, if a date is not specified, within 14 days from the date of the order. (If the debtor did not attend court, you should allow 14 days from the date of service.)
- Check whether the debtor has appealed the judgement and/or sought a stay of execution. If so, you may still be able to enforce your court order. The court will only grant permission for a stay of execution if a debtor’s appeal has a real prospect of success, so do not assume that any application will prevent or significantly delay payment.
- Often, particularly when competing debt cases remain ongoing, clients may take their eye off the ball following a successful hearing. However it is important to watch the clock. In simple terms, you cannot generally enforce the money judgement if more than 6 years have passed since it became enforceable. Apart from the fact that a money judgment may be rendered worthless if it is not effectively ‘redeemed’ in time, you should be wary of any delay at all because debtor’s assets may no longer be available as time passes, and a judge may be less inclined to exercise discretion when granting orders such as charging orders if there has been unnecessary delay.
- Consider the debtor’s assets and other liabilities before enforcing. If this has not already been done (and recently re-checked) prior to receipt of the court order, it is a good idea to find out what assets and liabilities the debtor has before deciding which method of enforcement, if any, you want to take. For example, you might undertake a search of the debtor’s property address to see whether the debtor owns it him/herself and you should check the Insolvency Register to see if the debtor is bankrupt or subject to an Individual Voluntary Agreement (IVA). If the debtor is bankrupt or subject to other insolvency proceedings there are statutory restrictions in place which may prevent you from taking enforcement action. If you are concerned that assets or funds may be dissipated before you can enforce you may want to consider applying for a freezing order. If it turns out that the debtor is impecunious, however, you may not wish to throw good money after bad.
- If you do then proceed with enforcement of the money judgement there a number of different options available:
- taking control of the debtor’s goods using Warrants and Writs of Control;
- securing a Charging Order over the debtor’s land, securities or certain assets;
- applying for a Third Party Debt Order;
- applying for an Attachment of Earnings Order; or
- pursuing Insolvency options. You may commence Bankruptcy Proceedings against an individual debtor if the debt owed is more than £750 (note this is due to increase to £5,000 from 1 October 2015) or if your debtor is a company you may want to commence Winding Up Proceedings.
Client Question 2
I would like to enforce a money judgment against a defaulting borrower by taking control of goods. What is involved? Are there any issues or practical points of which I should be aware?
Walker Morris Answer
Enforcing a money judgment through taking control of the borrower’s goods allows you to seize and sell goods in order to raise funds to satisfy a debt.
In order to take control of goods you need to apply to the court for:
- a Warrant of Control in the County Court if the debt is up to £5,000.00 in value; or
a Writ of Control in the High Court if the debt exceeds £5,000.00. - (If the debt exceeds £600.00 you can make an application to transfer the proceedings to the High Court for enforcement via the High Court Enforcement Officers in any event. This can result in more effective enforcement.)
Once the Warrant or Writ of Control have been issued, notice of the imminent enforcement action is sent to the defaulting borrower. 7 clear days, not including Sundays or Bank Holidays and not including the day of service itself, must pass before enforcement can take place. The bailiff or enforcement officer can then attend the borrower’s property on any day between the hours of 6 am and 9 pm, to secure goods or enter into a controlled goods agreement. (Certain goods, such as basic domestic items or items needed for the borrower’s trade or employment (up to an aggregate value of £1,350) can not be seized.) A further notice is then provided to the borrower, along with an inventory of the goods and the goods are sold, usually at auction, and the proceeds are paid to satisfy the debt.
Enforcing a money judgment in this way can be a fairly quick and straightforward. It is also relatively cheap, as the cost of the court fee and the bailiff or enforcement officer are deductible from the proceeds of the sale, so provided goods of this value of recovered you don’t lose anything. However, it can sometimes be difficult to ascertain the value of the borrower’s assets prior to taking action. There is also a possibility of third party claims arising if property is taken which does not belong to the borrower. Finally, you should consider the risk of bad publicity and potential PR issues which may be associated with enforcing in this way.
Watch out for information on other enforcement options in our Q&As to come.

Court assists creditors: Davy v Pickering & Others
Facts and Law In 2011, some ten years after having received professional advice from the […]
Facts and Law
In 2011, some ten years after having received professional advice from the defendant company (the Company), the claimant (Mr Davy) learned that the advice had been negligent and had caused him loss. Mr Davy made a complaint to the Financial Ombudsman Service, which informed the Company of his potential claim. While the complaint was being investigated, in March 2012, the Company was dissolved. The business had been sold and assets transferred to shareholders during the two year period prior to dissolution.
In order to pursue a claim, and in order to claw back Company assets which could compensate for negligent advice, Mr Davy had to overcome certain hurdles:
Limitation: ten years had elapsed between the giving of the negligent advice and Mr Davy becoming aware of the negligence. Further time had passed between Mr Davy’s knowledge and the bringing of proceedings.
Lack of legal entity and lack of assets: having been dissolved, the Company was no longer a legal entity against which a claim could be brought and, assets having been dissipated, there was nothing from which any compensation for Mr Davy could be paid in any event.
Despite the apparent practical difficulties, Mr Davy:
- applied to restore the Company to the register of companies and for consequential directions. (Section 1032 of the Companies Act 2006 (CA) allows the court to make any directions as seem just for restoring companies and any other persons to the position they would have been in had dissolution or strike-off not occurred.);
- entered into a standstill agreement in respect of the applicable limitation period for the bringing of his claim. (He sought to rely on section 14A of the Limitation Act 1980 which, in latent negligence cases, effectively extends the usual six year limitation period to a date three years from the date the claimant became aware, or should have become aware, of the negligence);
- sought a direction that the period between the Company’s dissolution and restoration did not count for limitation purposes; and
- sought a direction that if a winding up petition be presented within 14 days of restoration the petition be deemed to have been presented on the day that the company was struck off the register and dissolved (namely 20 March 2012). This was necessary to enable a liquidator to be appointed over the Company, who could then challenge the asset-disposal transactions under the transaction-avoidance provisions in the Insolvency Act 1986. In the ordinary course it would have been necessary to present the winding-up petition within two years of the relevant transactions taking place for the liquidator to be able to make such claims.
Decision and WM Comment
The High Court made the various directions requested by Mr Davy.
Whilst excluding the period of dissolution for the purposes of limitation is a fairly well-established principle and practice, the court’s application of section 1032 (3) CA to effectively back-date a creditor’s winding-up petition so as to allow the investigation and challenge of antecedent transactions is interesting and important.
Section 1032 (3) allows the court to make such provisions as seem just for restoring a person affected by a company’s dissolution or strike off to the same position it would have been in but for the dissolution/strike off. In this case, however, the court’s decision placed the claimant in a somewhat improved position. His Honour Judge Keyser QC, sitting as a Judge of the High Court, decided it was necessary to consider whether Mr Davy had been deprived of the opportunity to petition for the Company’s winding-up during the period of its dissolution, not whether he would actually have done so (bearing in mind his knowledge – or lack of it – at the relevant time). He stated that “[I]f justice requires that the effects of the striking-off of the Company be undone by restoring to Mr Davy his lost opportunity, the risk that his position will be improved over what it might have been perhaps because he is better able to take advantage of the opportunity-seems to me to be the price of seeking the best attainable equation of positions under section 1032(3).” [2]
This could be a useful decision for creditors of dissolved companies. It demonstrates the willingness of the court to assist claimants in circumstances where assets have been moved and companies dissolved in circumstances where potential claims are pending.
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[1] Graham Frank Davy v Brian Michael Pickering (1) Ann Dolores Pickering (2) Registrar of Companies (3) and 1000654 Ltd (4) [2015] EWHC 380 (Ch)
[2] para. 43

Don’t bite the hand that advises you
When an unusual business arrangement with family associates went wrong, a claimant looked to his […]
When an unusual business arrangement with family associates went wrong, a claimant looked to his solicitors’ professional indemnity insurance policy to try to recover lost funds. The case provides a helpful summary of the key principles for establishing the extent of a solicitor’s duty to advise a client of risks in any transaction.
Kandola v Mirza Solicitors [1]
The claimant, Mr Kandola, was a businessman with a significant real estate portfolio. He regularly instructed the defendant firm in relation to his dealings. In this particular case he instructed the firm on the purchase of a development property from a family friend. The family friend needed a short term loan for another, unconnected, transaction and so Mr Kandola agreed (a) to pay an unusually large deposit; and (b) for the deposit to be paid to the family friend’s solicitors as agent for the seller (so that the family friend could immediately use the money as he wished). The defendant firm advised Mr Kandola not to proceed on that basis. The firm advised that the proposed deal was too risky. They explained that the deposit would not be recoverable if the vendor went bankrupt or was unable to complete and they further advised that there were charges outstanding on the property, which the purchase monies may not cover and discharge. Nevertheless, Mr Kandola wanted to proceed and indeed he read and signed a waiver to say that he was doing so against advice.
When the vendor did then go bankrupt and the transaction failed to complete, Mr Kandola sought to recover his lost deposit from his solicitors, alleging that their advice had been negligently inadequate. In particular, he alleged that, had a bankruptcy or Land Registry priority search been carried out immediately prior to exchange, the bankruptcy petition would have been discovered and Mr Kandola would not have gone ahead.
Decision
The Law Society’s conveyancing handbook advises solicitors to warn clients of the dangers of paying a deposit as agent for the seller; it does not advise solicitors to carry out searches as Mr Kandola had contended. In a narrow sense, therefore, the defendant firm had discharged its duty.
In a wider context, the court explained that the extent of a solicitor’s duty to explain matters to his or her client takes account of the client’s experience in the relevant area. An inexperienced client, or one dealing in matters with which he or she was unfamiliar, might need more explanation and advice; a more experienced or sophisticated client may need less, if any. Furthermore, the court indicated that this is an objective test: a solicitor’s duty will be discharged if advice is given in terms suitable for the particular client’s experience in the area even if, in fact, the client did not subjectively understand.
Mr Kandola’s attempt to recoup his bad business loss from his solicitors failed.
WM Comment
The case is a helpful summary of the general principle that a client’s knowledge and experience in any given area will be relevant to the nature and extent of legal advice that a solicitor is professionally obliged to provide.
The principle is comforting to solicitors and their insurers, that indemnity policies will not be seen as an easy target to cushion clients’ bad business decisions; and it is equally convenient for commercial clients, who do not want to receive reams of back-covering legal advice every time they want to quickly and cost-effectively complete a deal.
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[1] Kandola v Mirza Solicitors LLP [2015] EWHC 460

Old law, new tricks
A recent High Court case on fairly common facts has thrown up tricky issues as […]
A recent High Court case on fairly common facts has thrown up tricky issues as to how established surveyor negligence and summary judgment principles should be applied. The judgment will be of interest to lenders, surveyors and legal advisors and professional indemnity insurers alike.
The law
In order to succeed in a negligence claim against a surveyor, a claimant must establish causation. It must prove, on the balance of probabilities, that but for the surveyor’s negligence, the claimant would not have suffered any loss. Applying the well-established but for test involves comparing the claimant’s position with the no negligence position (i.e. the position it would have been in if the surveyor had valued correctly). That is trite law following the Nykredit [1] case.
Where a subsequent loan fully redeems an earlier loan, no loss is suffered and so no cause of action subsists. In these circumstances, a claimant would only be able to pursue a claim if it had suffered loss and if that loss was caused by negligence, if any, in the valuation upon which the subsequent loan was founded. That principle derives from the Preferred Mortgages [2] case where it was found that there could be no claim against the first valuer once a remortgage had completed since no loss arose from that valuation following redemption of the original loan. There the lender should have pursued the second valuer.
The facts
In Tiuta v De Villiers Surveyors [3] the surveyor valued a part-built residential development on two separate occasions: once in February 2011 and later in November of the same year. The lender advanced loans to a borrower on the basis of each valuation, with the second loan fully redeeming the first. No allegations were made that the February valuation was negligent in any way, but following that initial valuation and loan, the borrower was indebted to the claimant lender for around £2.5m. The claimant lender subsequently sued the valuer on the basis of valuation given in November, which was allegedly a negligent overvaluation, and the defendant valuer sought summary judgment.
The claimant accepted that if the traditional but for test were to be applied, it would have no case. In comparing the actual circumstances with the no negligence position, the claimant would have been exposed to the existing indebtedness loss following the initial loan, regardless of the subsequent loan and any negligence. The “negligence caused the claimant to lend all the money under the new facility, but it did not cause loss.” [4]. The claimant therefore argued that the approach in Preferred Mortgages meant that the usual but for test should not apply. The claimant would otherwise be left having suffered loss and without a remedy despite alleged negligence in November 2011. The claimant also argued that the applicability of the but for test to cases where a subsequent loan had redeemed an earlier facility was a novel point of law in an area of developing jurisprudence, which should not be dealt with by summary judgment [5].
The decision
The judge acknowledged the unattractiveness of a causation test which would allow a defendant to take into account a claimant’s existing exposure that that defendant negligently caused when the defendant can no longer be sued for that negligence. However that was not the case here. No allegation was made in this case that the February 2011 valuation was wrong.
- The judge therefore agreed with the defendant that any loss was attributable to the existing indebtedness and was not caused by alleged negligence in November 2011 but left open for the claimant to amend its claim to argue that the February 2011 valuation was negligent.
In addition, the judge felt that it was acceptable to deal with the case by summary judgment.
- The facts of the case were all either uncontroversial or assumed in favour of the claimant;
the conclusion formed was in accordance with orthodox rules of causation in valuer negligence claims; - the area was not one of developing jurisprudence. Rather, this was a case of applying established jurisprudence from the highest levels of authority to particular (albeit tricky) facts;
- the residual amount of loss (taking into account estimated sale proceeds, etc.) was small; and
- whilst this was a summary judgment application, the judge had had the benefit of detailed written and oral submissions from Counsel for both parties. He was therefore confident all relevant arguments had been advanced.
WM Comment
This case is a good example of the court applying both established principles and a measure of proportionality and common sense, to resolve issues of causation following redemption of an earlier loan. It clarifies that the but for test does apply in a valuer’s negligence claim where loan monies have been used to redeem an earlier loan. The case also clearly demonstrates the circumstances in which it will be appropriate to dispose of a case summarily.
The argument raised by the valuer was effectively that, as there was an original indebtedness which was then remortgaged, the lender’s loss was not caused by the second valuation in November – the loss would have been suffered anyway. The court had some sympathy for the lender’s position as it left open the ability for the lender to amend its claim to then argue that the original February valuation was negligent and that loss had been caused by it making the first loan, which it subsequently remortgaged.
For lenders, the significance of this case should not be overstated. It does not mean that where a borrower remortgages an original loan the lender cannot bring a claim arising from the new loan against either the valuer or the solicitor involved. The case is distinguishable on its facts. Here the same lender had made the original loan and the remortgage loan. The same valuer had also acted. In most remortgage cases a different lender remortgages an original loan and different valuers are used.
Preferred Mortgages confirms that the lender cannot pursue the original valuer but leaves open a claim against the second valuer – that is common sense given the decision to lend is based on the second valuation. If the original valuation was correct but the second valuation was wrong then in the no negligence world the lender would still have a claim as it would not have made the remortgage loan had it known that the second remortgage was wrong, and thus not exposed itself to loss at all.
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[1] Nykredit Mortgage Bank plc v Edward Erdman Group Ltd [1997] UKHL 53
[2] Preferred Mortgages Ltd v Bradford & Bingley Estate Agencies Ltd [2002] EWCA Civ 336
[3] Tiuta International Ltd (in liquidation) v De Villiers Surveyors Ltd [2015] EWHC 773 (Ch)
[4] Tiuta v De Villiers Surveyors, para 12
[5] J D Wetherspoon v Van de Berg & Co Ltd [2007] EWHC 1044 (Ch)

When is a vexatious litigant a good thing?
The issues April 2013 saw the enactment of the Legal Aid, Sentencing and Punishment of […]
The issues
April 2013 saw the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). LASPO brought about large scale cuts to legal aid, causing huge, immediate and still-growing numbers of individuals to represent themselves in court where, previously, legally aided representation would have been available. To compound the issue, court fees on certain money claims have recently increased (in some cases up to six-fold). The concurrent squeeze on legal aid and increase in court fees means that, more than ever before, many individuals are representing themselves in court.
The challenges
From the point of view of banks and businesses which deal with individual consumers and which now more frequently find themselves embroiled in disputes with litigants in person, some of the key challenges include [1]:
- The majority of litigants in person have difficulties understanding and dealing with court procedures and legal issues in their case.
- Around half of litigants in person are personally vulnerable in some way, which makes negotiation of the legal and procedural requirements of self-representation more difficult.
Problems created by litigants in person can include a refusal to engage with proceedings and, on occasion, aggressive and disruptive behaviour. (Litigants in person do not have the one-step ‘remove’ from a personally emotive case that a legal professional can provide).
Some hearings are taking significantly longer, because lawyers and judges are taking time to explain rules and processes to litigants in person. - Those hearings that are taking less time are not being resolved quickly due to a lack of lawyers indulging in spoiling tactics and debating technicalities – rather these hearings (many of which are crucial case management conferences) are collapsing as litigants in person are overawed and unable to cope.
- Litigants in person sometimes seek to rely on ‘bad’ research – increasingly using the internet and misunderstanding the law or trying to import US or other legal concepts into UK civil litigation.
- Litigants in person can be unfamiliar with the concept of openness in disclosure and with the lawyer’s overriding duty to the court. This can lead to mistrust and litigation being unnecessarily combative and cumbersome.
- Represented parties can feel disadvantaged and, to some extent, even unheard, when litigants in person are allowed to speak out of turn and interject in court proceedings, whereas their legal representative follows due process.
Top Tips
In the majority of cases, positive engagement is the best means of ensuring that justice can be achieved for all parties as quickly and as cost-effectively as possible. To that end, here are our top tips for dealing with lay litigants:
- Remember that barristers and solicitors are under duties to help in the administration of justice overall.
- Be aware that it will assist both parties if, from the outset, solicitors acting for the represented party engage with the litigant in person to explain relevant law and procedure in clear, plain English and in a wholly neutral manner.
- Assist the court as much as possible. Bring extra copies of documents. Explain both parties’ legal case and bear in mind that legal authority and guidance may need to be provided, by the legal representatives, for both cases…
- …but at the same time guard against the represented party having to pay additional costs of burdens falling on the legal representative when they should fall to the unrepresented side.
- Adopt a non-adversarial approach. It may be that being open-minded and inquisitorial instead may flush-out, for the benefit of all concerned, the real issues in a case.
– A litigant in person may, underneath any inflated rhetoric, have some genuine and valid issues, which can be resolved before costs increase and parties’ positions become entrenched.
– An upfront inquisitorial approach may discover that an apology or other form of resolution may appease a litigant, as opposed to a financial payment or other relief available from the court.
– Of course, a litigant in person’s case may have no legal merit at all, in which case an inquisitorial approach might mean that the legal representatives would be forearmed to give the best chance of obtaining a strike out or other suitable conclusion.
- Clients should trust their legal representatives’ judgment. Just because a fact or issue is not spoken out in court, or because a litigant in person’s interjection is not challenged, does not mean that the matter is not properly addressed by the lawyers in the proper and most persuasive manner elsewhere within the proceedings.
- Call or e-mail the litigant in person a few days before any hearing to ensure that they understand and are complying with all practical arrangements and procedural requirements. This can avoided wasted time and costs for the client.
- Inform barristers in advance if the case involves litigants in person and plan to attend court early as any pre-trial negotiations will take longer than with represented parties.
- Avoid last minute correspondence and production of documents and do not assume that the lay person will have the same instant access to e-mail and other communications as would a professional.
- Over-, rather than under-, estimate timings for hearings.
- Finally, if you do face a vexatious litigant, consider this recent case…
A contrary case
In KL Communications Ltd v Wenfei Fu [1] an employer had issued a claim that one of its employees had dealt with its database improperly. The employee replied to a communication from the employer, informing it that correspondence should be sent to a particular address. The employer then used the given address for the service of proceedings. The employee failed to defend and so default judgment was obtained. The employee failed to set aside or appeal the judgment. When it came to execution of a costs order made against the employee, however, the employee argued that her defence had never been heard. The employee, a litigant in person, was given a chance. She was directed to serve evidence and a draft defence by a certain date, to show why she had a real prospect of defending. The employee did not comply. Rather, she went on to make multiple separate applications for various orders, such as that the employer should make certain disclosures; that the employer’s claim should be found to be libellous; that the employer’s claim should be found to be groundless; and so on. The employer applied for a civil restraint order and submitted that the employee had demonstrated a complete failure to engage properly with the litigation process. The court agreed and made some helpful observations:
- In considering an application for a civil restraint order, the court must be satisfied that a party had persistently issued claims or made applications that were totally without merit.
- A persistent course of conduct in this context means more than two such actions.
If it was otherwise appropriate for a civil restraint order to be made, the fact that the subject was a litigant in person who did not understand the process or had got things wrong was entirely supportive of the making of such order, rather than it being something which the litigant in person could rely on to avoid it. - The fact that the subject of a civil restraint order application was a litigant in person did not justify a long history of non-compliance or further indulgence from the court.
- Making a civil restraint order does not prejudice a subject’s rights. Rather, it forces a subject to make applications properly or not at all.
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[1] Sources include experiences of Walker Morris’ solicitors; extracts from Lord Dyson’s comments to the House of Commons justice committee in December 2014 and key findings from ‘Litigants in person in private family law cases’; Ministry of Justice Analytical Series 2014, para 2.1.
[2] KL Communications Ltd v Wenfei Fu IPEC 22/04/2015 Warren, J.