General Civil Restraint Orders in IPEC - Perry v Brundle

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Jane Lambert

Perry v F H Brundle and Others [2017] EWHC 678 (IPEC) (30 March 2017)

Para 1 of the Part 3C Practice Direction, which is made pursuant to CPR 3.11, enables the court to make a range of orders known as "civil restraint orders" against a party which has issued claims or made applications that are totally without merit. Each of those orders restricts access to the courts. They are known respectively as:
I discussed the jurisdiction to make those orders in Civil Restraint Orders in IPEC - Perry v Brundle 12 Oct 2015.

Readers will see that the most restrictive of those orders is the general civil restraint order which restrains the person against whom it is made from issuing any claim or making any application in the High Court or the County Court without permission if the order is made by a judge of the High Court. Such an order may be made only where an extended civil restraint order would not be sufficient or appropriate.

In Perry v F H Brundle and Others [2015] EWHC 2737 (IPEC) (2 Oct 2015) Judge Hacon said at para [28] that

"A CRO should not in practice significantly deprive a litigant of any right to which he or she would otherwise be entitled. It acts as a filter to preclude the making of unmeritorious claims or applications. This ought to work in favour of all parties, including the litigant who is the subject of the order – especially where he is a litigant in person – by ensuring that their time and money are not wasted by initiatives doomed to failure."

That last point was developed by Mr Justice Warby in Avon and Somerset Constabulary v Gray (Rev 1) [2016] EWHC 2998 (QB) (23 Nov 2016):

"(4) Fourthly, as Mr Gray has emphasised, a CRO interferes with the right of access to a court. That is a fundamental civil right. The court must be alive to that, and wary of too readily imposing restrictions upon the right of access. Restrictions should be imposed only if and to the extent that they are necessary in the pursuit of a legitimate aim. In the case of a CRO the legitimate aims in view include the protection of the rights of others, to be free from the waste of time and precious resources that flow from the bringing of unfounded claims and applications. The scarce publicly funded resources of the court also require protection against such waste. These are considerations which justify the existence of the CRO regime.
(5) In that context, the fifth point is important. A GCRO is not, as some of Mr Gray's submissions would suggest, a bar on the bringing of any proceedings. It imposes a permission filter. Permission filters are a well-established feature of civil and criminal procedure. They are most common as a way of controlling the use of appeal mechanisms. But permission is required to initiate a claim for judicial review. The court would not refuse permission to bring a claim of substance with arguable merit. What it might do, if presented with such a case, is to give directions to ensure that any untenable aspects of the claim were removed and to ensure that all remaining claims were conducted fairly and efficiently, did not consume disproportionate resources, and were otherwise dealt with in accordance with the overriding objective."

In  Perry v F H Brundle and Others [2017] EWHC 678 (IPEC) (30 March 2017) the first and second defendants applied for a general civil restraint order against the claimant Richard Perry who had brought patent infringement proceedings against them even though his claim had already been disposed of in previous proceedings and any cause of action that may have subsisted against those defendants would have passed to the Official Receiver. In Perry v F H Brundle and Others [2015] EWHC 2737 (IPEC) (2 Oct 2015) Judge Hacon made an extended civil restraint order against Mr Perry which expired on 25 March 2017. I set out the background to that order in A Sad but not Unusual Tale of an Inventor 15 Oct 2015 NIPC Inventors' Club.  

After Judge Hacon had made the extended civil restraint order Mr Perry applied to Mr Justice Rose for permission to appeal against that order which His Lordship refused. He also applied unsuccessfully to Mr Justice Newey for permission to renew his appeal on 9 March 2017 even though that order was about to expire.

At para [14] of the application for a general civil restraint order, Judge Hacon directed himself as follows:

"It seems to me that the principles set out above in relation to an application for an ECRO apply equally in the context of a GCRO save that I must be further satisfied that an ECRO would not be sufficient or appropriate. Generally this will require evidence that the party concerned is likely to persist in the future in issuing claims or making applications which are totally without merit concerning matters other than those involving or relating to or touching upon or leading to the proceedings in which the order is made."

In a letter to Mr Justce Rose dated 24 Aug 2016, Mr Perry had set out a long list of actions and applications that he proposed to launch. These were catalogued by Judge Hacon at paras [15] to [17] of his judgment. At para [18] His Honour made clear that on the evidence he had seen, he had no reason to suppose that there had been any misconduct by anyone. Those proposed actions and applications covered a range of issues of which patent infringement was only one. Having been satisfied that there was a real risk that Mr Perry intended to bring claims and applications in the future that are totally without merit the learned judge concluded at para [29] that a general civil restraint order was necessary and that it should last for 2 years from 27 March 2017.

As I said in A Sad but not Unusual Tale of an Inventor, it is hard not to feel sorry for Mr Perry. Having seen many private inventors in pro bono clinics around the country and at inventors' clubs in Leeds, Liverpool, Manchester and Sheffield, I can well understand how he feels. He has created a product that he and others consider to be useful and for which he believed he was entitled to a monopoly. He believed that others were encroaching on his monopoly but instead of siding with him against them the law has allowed them to tie him into knots. It is obvious why he should feel a deep sense of injustice.

Yet that does not mean that the law is wrong or has been applied unjustly. A patent is a very strong thing as it restricts competition between manufacturers and limits consumer choice. A threat to bring patent infringement proceedings spooks distributors. That is why patents have to be construed in the way that they are and why the s.70 of the Patents Act 1977 provides an action to restrain groundless threats. Mr Perry's difficulties appear to stem from his acting for himself as his own patent attorney and his own counsel. Consequently, his patent afforded inadequate protection for his invention and he threatened proceedings that he could never win. The remedy is not to rail against the law, lawyers or the courts but to understand the law and use it effectively. 

Sadly, it is probably too late to help Mr Perry but in the last paragraph of A Sad but not Unusual Tale of an Inventor, I suggested a number of steps that other inventors can take to avoid the same difficulty. Should anyone wish to discuss this case note or any of those steps, he or she should call me on 020 7404 5252 during office hours or send me a message through my contact form.

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