Helen Potgieter v Avon and Somerset Constabulary [2025] EWCC 36

[2025] EWCC 36Case No K00BS743
IN THE COUNTY COURT AT BRISTOL
Venue Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GRDate 4 July 2025
Before
HHJ PAUL MATTHEWS
Between
HELEN POTGIETERClaimantAVON AND SOMERSET CONSTABULARYDefendant
Matter dealt with on paper
[1]On 10 October 2022 I committed the claimant to prison for contempt of court for 20 months, and (because she was not in court) issued a warrant for her arrest. Some days later she was arrested by officers of the defendant police force and taken to prison, where she served her sentence. On 12 July 2023 the claimant issued the present claim, claiming that her arrest in October 2022 had been unlawful, because she had not been shown the warrant. The defendant was served with the claim and subsequently filed an acknowledgement of service.[2]On 30 April 2021 I had made an extended civil restraint order for two years against the claimant in relation to(i) the claims which she had sought to make against Bristol City Council in respect of water ingress and flood damage at her former property, 9 Station Road, Shirehampton, Bristol BS11 9TU (3BS01698), and(ii) the claims that she sought to make against her trustee in bankruptcy and the applications made in the trustee’s claims against her (Petition No 29 of 2016). Her original claim against the City Council was dismissed in August 2016, and the Court of Appeal refused permission to appeal as totally without merit.[3]The claimant was adjudged bankrupt in March 2017. In May 2017 the court suspended the respondent’s discharge from bankruptcy indefinitely, for failure to cooperate with the trustee. In August 2018 order was made by the court for the claimant to give up possession of the property to her trustee in bankruptcy. She was evicted by court bailiffs in November 2018, but broke back in again.[4]In July 2019 was once again evicted by court bailiffs. This time the property was secured by metal shutters, but the claimant nevertheless broke in a second time. In April 2022 (after the coronavirus pandemic had interrupted eviction proceedings) the trustee in bankruptcy brought proceedings against the claimant for contempt of court, and these resulted in the committal in October 2022 referred to above.[5]The extended civil restraint order of 30 April 2021 expired on 29 April 2023. On the previous day, the City Council had issued an application for its extension, but this had not been heard by then. The claimant was still in prison. The application was listed for 21 June 2023. However, had to be adjourned because the City Council had served the hearing bundle on the claimant only that morning.[6]I heard the application therefore on 12 July 2023, and gave a written judgment the following day, 13 July 2023, in which I extended the original (but expired) extended civil restraint order to 29 April 2026. In these circumstances, there was no civil restraint order in force from 30 April 2023 to 12 July 2023 inclusive. The claimant was therefore able to issue the claim against the present defendant without the need to consider whether any permission was needed under the ECRO.[7]The present claim was tried by DJ Field at the County Court at Weston-super-Mare. He handed down a written judgment on 6 August 2024, dismissing the claim. The claimant sought permission to appeal by way of an appellant’s notice filed on 27 November 2024. This was well outside the usual 21 day limit, and so the claimant required an extension of time to file her notice. On 23 December 2024, HHJ Blohm dealt with the matter on the papers, and refused the extension of time.[8]The judge’s order was sealed and sent out only on 20 January 2025. On 28 January 2025 the claimant applied by notice for an order setting aside the order of 23 December 2024. She applied for help with fees. On 6 February 2025, the court wrote to her as follows: “Your help with fees form has been returned for the following reasons:-• you are unable apply for help with fees for your N244 application as there is currently a Extended Civil Restraint Order in place, therefore should you still wish to proceed can you please call the court on 0117 366 4840 to pay the sum of £303 in order that we may process your application”.• you are unable apply for help with fees for your N244 application as there is currently a Extended Civil Restraint Order in place, therefore should you still wish to proceed can you please call the court on 0117 366 4840 to pay the sum of £303 in order that we may process your application”.[9]On 13 February the claimant replied to the court, saying (amongst other things): “1) Case K00BS743 is not captured by any ECRO 2) As a result any help with fees application in relation to help with fees is not included in ECRO 3) HP {the claimant] has made several applications during the course of this case and has never been refused help with fees ie discrimination is being employed”.[10]On 27 February 2025, the court replied, saying (in part) as follows:
“As per HMCTS guidelines, which are available on the internet under the website https://www.gov.uk/guidance/civil-restraint-orders--2 this stipulates that ‘A person who has a CRO against them cannot apply for help with fees’.”
The Internet guidance does indeed say that. It does not however cite any authority.[11]The Fees Section of the court has referred the matter to me to resolve the dispute. The relevant statutory provision is contained in the Civil Proceedings Fees Order 2008, as amended. Remissions of fees (“help with fees”) are governed by article 5 and Schedule 2 of the Order. Article 5(1) provides that, subject to an exception which is not relevant to this case, “Schedule 2 applies for the purpose of ascertaining whether a party is entitled to a remission or part remission of a fee prescribed by this Order”.[12]Paragraph 19 of Schedule 2 provides as follows:
“(1) This paragraph applies where— (a) a restraint order is in force against a party; and (b) that party makes an application for permission to— (i) issue proceedings or take a step in proceedings as required by the restraint order; (ii) apply for amendment or discharge of the order; or (iii) appeal the order. (2) The fee prescribed by this Order for the application is payable in full. (3) If the party is granted permission, they are to be refunded the difference between— (a) the fee paid; and (b) the fee that would have been payable if this Schedule had been applied without reference to this paragraph.”
Paragraph 1(1) of Schedule 2 provides that “restraint order” includes a civil restraint order made under rule 3.11 of the Civil Procedure Rules 1998, or a practice direction made under that rule. (a) a restraint order is in force against a party; and (b) that party makes an application for permission to— (i) issue proceedings or take a step in proceedings as required by the restraint order; (ii) apply for amendment or discharge of the order; or (iii) appeal the order. (a) the fee paid; and (b) the fee that would have been payable if this Schedule had been applied without reference to this paragraph.”[13]In my judgment the wording of Paragraph 19(1)(b) makes it clear that the “restraint order” referred to in paragraph 19 must be one which actually applies to the case at hand. So, for example, the order might require the applicant to seek permission to take a step, and the applicant seeks help with fees. So, as the claimant recognised in her letter of 13 February 2025, there is another question that needs to be asked and answered. This is whether she needs permission from the court under the ECRO to make her application for an order setting aside the order of HHJ Blohm KC. It is clear that the claimant thinks that she does not, and that the reason is because her claim was issued before the ECRO came into force.[14]In fact, there are two distinct points here. The first point is whether the subject matter of the ECRO covers the present claim at all. An ECRO is not a GCRO, which extends to all claims issued and applications made in the designated courts. Instead, an ECRO extends only to “issuing claims or making applications … concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made … ” (see paragraph 3.2 of CPR Practice Direction 3C).[15]The second point is whether the claimant is right to say that, because she issued the claim before the date of the ECRO, she does not need permission to make any applications within the claim either, even if they are or have been made after the date of the ECRO. (She says that she has not been required to seek permission in this claim so far.) However, this point arises only if the ECRO does in fact cover the present case.[16]So far as concerns the first point, the defendant was asked if it wished to comment on this matter, but indicated that it was neutral. So I take into account what Mrs Potgeiter has said, and express my own view. The proceedings in which the ECRO was made were to(i) the claim which she had sought to make against the City Council in respect of water ingress and flood damage at her former property, and(ii) the claims that she sought to make against her trustee in bankruptcy and the applications made in the trustee’s claims against her.[17]The present claim is one against the police in relation to the circumstances of her arrest after I had committed her to prison for contempt of court. The claimant said that the arrest was unlawful because the police did not show her the warrant at the time. This claim has nothing to do with the earlier proceedings. It does not seek to relitigate in any way the claims that the claimant made against the City Council and her trustee in bankruptcy. It simply says that the police acted unlawfully at the time of her arrest.[18]It is true that, but for the bankruptcy, the claim against the police could not have arisen, because she would not have been found in contempt of court and committed to prison, and would not have been subject to arrest. But that is not enough. In my judgment, the present claim is not caught by the ECRO, and the claimant does not fall within the scope of paragraph 19 of Schedule 2 of the Civil Proceedings Fees Order 2008. So, if she otherwise qualifies for help with fees, she is not prevented by paragraph 19 from receiving it.[19]In the circumstances, the second point does not fall to be decided, and I will therefore leave it for decision in a future case in which it arises.[20]The internet guidance of HMCTS quoted above needs to be reconsidered. It does not accurately summarise the effect of paragraph 19 of Schedule 2 to the 2008 Order. As I say above, “the ‘restraint order’ referred to in paragraph 19 must be one which actually applies to the case at hand”.