Moosun, & Ors v HSBC Bank Plc (t/a First Direct) [2015] EWHC 3308 (Ch)

Case No HC-2015-003413

[2015] EWHC 3308 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, The Rolls Building, 7 Rolls Buildings

Date 2nd November 2015

London EC4A 1NL

Before

MR. JUSTICE SNOWDEN

Between

MRS. SABRINA SHAFIKA MOOSUN,Claimants

NESSAH MOOSUN (a minor)Claimant

IMRAN MOOSUN (a minor)Claimant

HSBC BANK PLC T/A FIRST DIRECTDefendant

And between :

Between

MRS. SABRINA SHAFIKA MOOSUN,Claimants

NESSAH MOOSUN (a minor)Claimant

IMRAN MOOSUN (a minor)Claimant

and two dogsClaimant

HSBC BANK PLC T/A FIRST DIRECTDefendants

and SHOOSMITHS LLPDefendant

Digital Transcript of Marten Walsh Cherer Ltd.,

1 st Floor, Quality House, 6-9 Quality Court,

Chancery Lane, London WC2A 1HP.

Telephone No: 020 7067 290

Email –info@martenwalshcherer.com

Website –www.martenwalshcherer.com

MISS C. WILMOT-SMITH (instructed by Shoosmiths LLP) appeared on behalf

of the Defendants.

The Claimants were neither present nor represented.

Judgment

Mr. Justice Snowden:

Introduction

[1]I have before me a number of applications in two sets of proceedings. The applications are brought by HSBC Bank plc and, in broad terms, are to strike out or for the summary determination in the bank’s favour, claims which have been brought against it an its solicitors by, amongst others, Mrs. Sabrina Shafika Moosun. As well as applications to strike out the proceedings the bank also seeks a general, alternatively, an extended civil restraint order against Mrs. Moosun.

[2]Today the bank has been represented by Miss Wilmot-Smith. Mrs. Moosun did not appear and neither do any of the other persons and animals named as claimants in the proceedings. I am, however, satisfied that Mrs. Moosun has been served and notified of the applications which are before me today.

[3]In August of this year I heard an interim application in claim HC-2015-003413 by Mrs. Moosun, who appeared in person, which I dismissed. I indicated should be relisted to be heard in front of me for a determination as to whether it was made totally without merit and, if the bank wished to pursue the point, whether a civil restraint order ought to be made against Mrs. Moosun. I indicated at the time that those applications should be listed to be heard early this term. Mrs. Moosun was therefore certainly aware at that stage of the likelihood that an application for a civil restraint order would be made against her.

[4]The first application by the bank which specifically seeks a civil restraint order against Mrs. Moosun was dated 18th September 2015 and was served together with supporting evidence on Mrs. Moosun. The second application dated 19th October 2015 was served on Mrs. Moosun by email to the email address sabmo888@gmail.com. That is the email address Mrs. Moosun has herself indicated in a witness statement in support of claim HC-2015-004041 and in other recent proceedings that she issued on 24 September 2015 (which I shall refer to later in this judgment) should be used to communicate with her. Further, on 19th October, and in response to the service of that second application, Mrs. Moosun responded from that email address to the bank indicating that she was “away from the UK” and requesting that the legal proceedings against her should be put on hold pending her attempts to obtain what she described as “external legal assistance”.

[5]Two other emails from the bank have since been sent to that same email address. The first was on 19th October 2015 indicating that the hearing of the applications would be listed for either 2nd, 3rd, or 4th November 2015, and the second was on Friday of last week, 30th October 2015, notifying Mrs. Moosun that the matter had actually been listed for hearing this morning and giving her a copy of the bank’s skeleton argument which set out in some detail both the grounds upon which the proceedings are sought to be struck out and dealing with the making of a civil restraint order against Mrs. Moosun.

[6]There has been no response from Mrs. Moosun to those recent emails, but I am satisfied that in the circumstances Mrs. Moosun has been put on notice, at the email address which she has indicated should be used for proceedings, of the hearing of these applications by the bank. Accordingly, I have proceeded to hear the matter in her absence.

The claims by Mrs. Moosun’s children and dogs

[7]The first application, as I have indicated, is dated 18th September 2015 and seeks an order striking out claim no. HC-2015-003413 which was issued on 14th August 2015. That is a claim which purports to be brought by Mrs. Moosun and her two infant children, against the bank.

[8]The first point taken by Miss Wilmot-Smith for the bank is that Mrs. Moosun’s children are named as claimants in the proceedings but they are minors. No litigation friend has been appointed on their behalf and no order has been made permitting them to bring proceedings. Therefore, submits Miss Wilmot-Smith, pursuant to CPR 21.2, the actions brought in the names of the children are of no effect and should be dismissed. I agree and intend to strike out the claims by the two children.

[9]The second application is dated 19th October 2015 and seeks to strike out the claim in action HC-2015-004041 which was issued on 21 September 2015. That claim is sought to be brought by Mrs. Moosun, her two infant children, and two dogs who are identified as Goldie, aged 18 months, and Diamond, aged 2 years. Again, Miss Wilmot-Smith takes the point that the claims by the children should be struck out as they are brought in circumstances where no litigation friend has been appointed on behalf of the children and no order has been made permitting the children to bring proceedings. That is right, and for the same reasons as in relation to the first claim, I shall strike out the claims by the children.

[10]Miss Wilmot-Smith also makes the obvious point that dogs are not capable of bringing legal proceedings. Among other things, CPR Part 2.3(1) defines “claimant” as a person who makes a claim, and a dog is not a person. I also cannot see how a dog could give instructions for a claim to be brought on its behalf or be liable for any orders made against it. There are a whole host of other reasons why proceedings by dogs must be void, and accordingly I am satisfied that in so far as the claim purports to be made on behalf of the two dogs it should also be struck out.

The claims by Mrs. Moosun

[11]The history of Mrs. Moosun’s proceedings against the bank is long and I shall endeavour, as best I can, to summarise it.

[12]Mrs. Moosun was the owner of a property at Jasmine Cottage, Wood Lane, Iver, which she purchased in February 2008 for £385,000 with the assistance of a mortgage from the bank. In September 2008, the South Bucks District Council issued an enforcement notice against Mrs. Moosun because of unauthorised developments at the property. There had been an unauthorised extension to the cottage.

[13]Mrs. Moosun launched an appeal to the planning inspectorate against the enforcement notice and that appeal was rejected by the planning inspector in July 2009. Mrs. Moosun subsequently sought judicial review of the council’s behaviour in relation to the enforcement notice but that judicial review was dismissed by Collins J on 6th February 2013, first on the basis that the application for judicial review was out of time and, secondly, that there was in any event no merit in the claim.

[14]Returning to events in 2009, the consequence of the enforcement notice being issued and the rejection of the appeal against it was that the bank took action in 2009 pursuant to its rights under the mortgage. In brief terms, the mortgage was an offset mortgage and one of its provisions permitted the bank to take steps in the event of breach of any of the terms of the mortgage, or a threat to the bank’s security, to restrict further drawings on the offset mortgage and to apply any positive balance on any account against the amounts owing. The bank took such steps in 2009.

[15]Mrs. Moosun disputed the bank’s ability to act as it had under the terms of the mortgage and complained to the Financial Services Ombudsman in 2010. That complaint was rejected in August 2010.

[16]The consequence of the bank’s action was that Mrs. Moosun fell into arrears in relation to repayment of the loan and the bank took possession proceedings in the Uxbridge County Court against Mrs. Moosun. The proceedings were considered by District Judge Jones at a hearing which Mrs. Moosun did not attend on 23rd August 2011. The District Judge made an order for possession.

[17]Mrs. Moosun immediately applied to set aside that order for possession and her attempt to do so was considered by District Judge Lenon in the Uxbridge County Court at a hearing on 8th June 2012. Mrs. Moosun was represented at that hearing by counsel. I have seen a note of the judgment of the District Judge, who went through the background facts and also considered expressly the complaint that Mrs. Moosun made that the bank was not entitled, as she put it, to freeze her account. The District Judge considered the evidence and, in particular, the provisions of the mortgage, and rejected Mrs. Moosun’s argument that the bank had not been entitled to act as it did under the terms of the mortgage. In particular, the District Judge held that under clause 29 of the mortgage, if the mortgage became enforceable, the bank could without prior notice transfer any credit balance in or towards discharge of any debit balance on any of Mrs. Moosun’s accounts. He further held that that power had been properly exercised by the bank and that Mrs. Moosun’s complaint to the contrary was unfounded.

[18]Mrs. Moosun subsequently sought to appeal that order. I have seen the full skeleton arguments that were subsequently put before the county court judge, HHJ Bailey, who heard the application for permission to appeal on 28th November 2012. Those skeleton arguments, both from Mrs. Moosun and from the bank’s counsel, were extensive. For her part, Mrs. Moosun raised a considerable number of points concerning the actions by the bank, both as a matter of contract and in relation to an alleged denial of her rights under the European Human Rights Convention, among other things by reason of the fact that the original order made by District Judge Banks had been made in her absence. She also alleged that what was happening to her involved “satanic freemasons”.

[19]HHJ Bailey gave a reasoned judgment going into the background of the history relating to the property, the planning consents (or lack thereof), and the validity of the decision of the bank as to whether to exercise its powers under the mortgage. Having done so, HHJ Bailey refused permission to appeal.

[20]Not deterred, Mrs. Moosun then issued proceedings for judicial review on 5th February 2013 in the Administrative Court of the High Court claiming that the HHJ Bailey had not given any reasons as to why he had dismissed her application for permission to appeal and claiming that the order that had been made was in error as a matter of law. In support of her application for judicial review, Mrs. Moosun again made a substantial complaint about the activities of the bank in “freezing” her accounts without prior notice and not adhering to the terms and conditions in any legal manner. She also asserted (again) that her rights under the ECHR had been infringed, that her property was worth substantially more than the amount of the debt owed to the bank, and that there was a conspiracy against her involving freemasons.

[21]That application for judicial review of the county court judgment was finally dismissed by Mr. Justice Green, sitting in the Administrative Court, by an order of 16th April 2014. Green J recorded that, contrary to the application made by Mrs. Moosun, the judge had in fact delivered a fully reasoned judgment after full argument and he recorded that there was nothing which came close to showing an arguable case for granting permission. He declared that Mrs. Moosun’s application was totally without merit.

[22]Returning to events in the county court in 2013, after the refusal of permission to appeal by HHJ Bailey, the bank obtained a warrant for possession in October 2013 and a date was set for Mrs. Moosun to be evicted on 3rd December 2013.

[23]On 28th November 2013 Mrs. Moosun made an application to suspend the warrant for possession and to quash previous orders. That application was heard on 3rd December 2013 by District Judge Wood, who dismissed the application and refused permission to appeal. A further application to suspend the warrant for possession and to quash previous orders was then made on 23rd December 2013. That was dismissed by District Judge Banks on 6th January 2014, and the District Judge recorded that the application was wholly without merit.

[24]On 8th January 2014, Mrs. Moosun applied for permission to appeal the order of District Judge Wood of 3rd December 2013. That appeal was struck out by Mrs. Justice Rose on 16th April 2014.

[25]On 10th January 2014, Mrs. Moosun applied again to suspend the warrant of possession. That application was made to the High Court and it was heard in the Interim Applications Court on 14th January 2014. On that occasion, Mr. Justice David Richards held that he did not have jurisdiction to deal with the application on the basis that any appeal against a possession order should lie to a circuit judge.

[26]Following the refusal of permission to bring judicial review proceedings by Green J on 16th April 2014, Mrs. Moosun still refused to give up possession of the property and renewed her application for permission to apply for judicial review. She again claimed (among other things) that there had not been a fair trial in breach of the ECHR because the hearing had been held in her absence. That renewed application was refused by an order of Mr. Justice Warby on 26th June 2014, at a hearing which Mrs. Moosun did not attend. Warby J also recorded pursuant to CPR 23.12 that the application was totally without merit.

[27]On 27th May 2014, Mrs. Moosun again applied to the High Court to stay the order for possession and for permission to appeal against those orders. On 28th July 2014 Mr. Justice Barling refused those applications on paper, having first called for the entire file from the Uxbridge County Court. Barling J held that Mrs. Moosun’s claim that she had not had a fair trial on 23 August 2011 had no real prospect of success given that there had been two further substantive hearings before District Judge Lenon (where she was represented by counsel) and HHJ Bailey. Barling J also held that there were no other grounds of appeal which would have any real prospects of success. He declared the proposed appeal to be wholly without merit.

[28]On 21st October 2014, in the Uxbridge County Court, District Judge Banks made a limited civil restraint order against Mrs. Moosun (who did not appear) preventing her from making any application in the claim for possession without the prior permission of the court.

[29]On 27th October 2014, Mrs. Moosun applied to the High Court to set aside the limited civil restraint order. That application was heard and refused by Mr. Justice Mann in the Interim Applications Court on 4th December 2014. Mann J recorded that the application should be regarded as being totally without merit.

[30]On 8th January 2015, Mrs. Moosun again applied to the High Court to set aside the order of Mann J and to suspend the execution of the warrant of possession, the eviction date having been reset for 12th January 2015. That application was not listed to be heard until 15th January 2015, but in the meantime, Mrs. Moosun made two further applications to suspend the warrants of possession in the Uxbridge County Court. She also applied to discharge the limited civil restraint order against her. Those applications were heard on 12th January 2015 by District Judge Banks. Those applications were refused and recorded as having been wholly without merit.

[31]Later on 12th January 2015 the bank finally obtained possession of the property.

[32]On 15th January 2015 Mr. Justice Birss heard Mrs. Moosun’s application of 8 January 2015. Mrs. Moosun was represented by counsel provided by the CLIPs scheme. The application was dismissed and Birss J recorded that the application should be regarded as totally without merit. At that stage, Birss J declined to make an extended civil restraint order against Mrs. Moosun.

[33]On 4th February 2015, Mrs. Moosun applied for an injunction to the Central London County Court, without notice to the bank, to prevent the bank from selling the property. That application was heard on 10th February 2015 by HHJ Taylor. HHJ Taylor found that Mrs. Moosun had failed to comply with the terms of the limited civil restraint order in making the applications without the permission of the designated District Judge and without notice to the bank. HHJ Taylor dismissed the applications, refused permission to appeal and again recorded that the applications were totally without merit.

[34]The bank then proceeded, as mortgagee in possession, to arrange for an auction of the property. That auction was scheduled to take place on 6th August 2015. On 5th August 2015, Mrs. Moosun applied to the Chancery Division for an order to set aside the possession order that had been granted on 23rd August 2011 and to suspend the auction that was scheduled to take place the next day. That application was heard and refused on 6th August by Mr. Justice Mann. In essence, Mann J held that Mrs. Moosun had not submitted any evidence to support her case that she was able to repay the bank and it was too late in the day to try and stop the auction of her house. The judge described Mrs. Moosun as attempting to have “another bite at the cherry”.

[35]Mrs. Moosun subsequently made a further application after the auction had taken place on 10th August 2015 to stay the sale of the property pursuant to the contract that had been entered into following the auction. That application came before me in the Interim Applications Court on 20th August 2015 and in a judgment given on that day,

[2015] EWHC 2775 (Ch)

, I refused the application for an injunction.

[36]In essence, I took the view that there was nothing inherently suspicious about the price that had been obtained at auction, £285,000, having regard to other offers which had been made round about that time. I also rejected the suggestion made by Mrs. Moosun that the value of the property was substantially more than the price obtained at auction. Mrs. Moosun had sought to rely upon an estate agent’s recommendation from 2012 that the property should be put onto the market at between £950,000 and £1.3m. However, it seemed to me that that advice obviously failed to recognise that the property was not as described, a five-bedroomed house, but was in reality a property against which there was an extant enforcement notice which required a substantial part of the property to be demolished, no doubt at considerable expense. I also rejected Mrs. Moosun’s application because, as had been the case before Mann J a couple of weeks earlier, Mrs. Moosun signally failed to produce any evidence of her ability to pay the bank what it was owed.

[37]On 20th August 2015 I adjourned the question of whether that application before me was totally without merit. I also adjourned the consideration of the question of whether, if I took the view that the application was totally without merit, an extended civil restraint order ought to be made against Mrs. Moosun, as had been suggested by the bank in its submissions. I did so in order to give Mrs. Moosun (who had become agitated at the hearing on 20th August 2015) time to prepare any submissions or evidence in response.

[38]Having reviewed the application made by Mrs. Moosun on 20th August 2015, I can say now that I take the view that the application was totally without merit. In essence, it was simply an attempt to rerun in front of me the arguments which had failed in front of Mann J, and as I indicated in my judgment, I thought there was nothing in them at all.

[39]Events did not stand still after 20th August 2015, because on 2nd September Mrs. Moosun issued proceedings which she appears to have drafted on 24th August 2015, only a very few days after I had rejected her application for a stay of the sale of the property pursuant to the contract that had been entered into at auction. The new proceedings purported to be in the name of Mrs. Moosun and her two children, and were against a Mr. Healey and a Mr. Miller who were the asset managers and the auctioneers who were appointed to conduct the sale of Jasmine Cottage. The application notice attached a statement from Mrs. Moosun that accused the defendants of participation in what she described as “corrupt and illegal dealing” with her home. Miss Wilmot-Smith told me, on instructions, that she understood from counsel who had appeared for the defendants, that Mrs. Moosun’s application was dismissed by the court and recorded as having been totally without merit.

[40]Again, matters did not stop there. On 21st September 2015, Mrs. Moosun issued two further sets of proceedings. The first, HC-2015-004041, were the proceedings against the bank and its solicitors, Shoosmiths, issued on behalf of Mrs. Moosun, her children, and her dogs to which I have already referred.

[41]The second set of proceedings, HC-2015-004042, were issued on behalf of Mrs. Moosun and her children against Ranson Houghton (a firm), who I understand to have been acting for the buyers of the property at auction. The brief details of that claim are as follows:

“It is the claimants’ submission that the defendants unprofessional misconduct and colluding with the fraudulent, corrupted and illegal dealing with the claimants’ family home. The defendants deliberately caused financial loss, stress, and anxieties of the claimants.”

The value of the claim was put at £1.2m. I have no further information as to what has happened to that claim.

The Application to strike out the claims by Mrs. Moosun

[42]Dealing with the two claims which the bank seeks to strike out in sequence, the first claim (HC-2015-003413) is described as follows in the claim form:

“It is the claimants’ submission that the defendant unlawfully took custody of their initial family home, namely, Jasmine Cottage, Wood Lane, Iver, and engaged to act in fraudulent manner to cause financial losses to the claimants, being Mrs. Moosun and her two young children who are also victims of this issue. Due to these issues Mrs. Moosun and her two children are making a claim for breach of contract due to the defective performance of the agreement that I had with the defendant.”

The value of the claim is put at £3,570,000: no particulars are provided as to how that sum is arrived at.

[43]The claim form is not supported by particulars of claim. It does, however, attach a statement of Mrs. Moosun, which contains a number of complaints in relation to the bank’s actions including in particular the “freezing” of her account. It also makes various allegations against District Judge Banks, and alleges a breach of Mrs. Moosun’s rights under the ECHR.

[44]Miss Wilmot-Smith makes a number of points about this claim. She submits that the main point is that the claim for breach of contract due to defective performance of the agreement between Mrs. Moosun and the bank is a matter that has been litigated on a number of occasions in the possession proceedings in the county court and thereafter sought to be litigated by way of judicial review. As I have indicated, on each occasion the claim has been rejected. Miss Wilmot-Smith also submits that to the extent that they are comprehensible, the other allegations made in relation to the earlier hearings and under the ECHR have also been repeatedly ventilated in subsequent applications, appeals and in the judicial review proceedings. She again submits that all such challenges have been rejected.

[45]It is trite law that it is an abuse of process to seek to re-litigate claims which have already been the subject of a final and binding determination between the parties on an earlier occasion: see e.g. Virgin Atlantic Airways v Zodiac Seats

[2014] AC 160

[46]It seems to me, first, that Mrs. Moosun’s attempt to re-litigate questions of whether the bank was acting in accordance with its mortgage contract with Mrs. Moosun when it acted to combine accounts and then took possession proceedings against Mrs. Moosun has already been finally decided on a number of occasions. It is an abuse of process for her to seek to re-litigate that matter. I also consider that the explanations that have been given by a number of courts of the bank’s entitlement provide ample justification for the actions that the bank took at the relevant time.

[47]The same can also be said of the other allegations relating to the various hearings and as to the alleged breaches of Mrs. Moosun’s rights under the ECHR. Again, it seems to me, that it is an abuse of process for those allegations to be raised again in these proceedings.

[48]For those reasons I propose to strike out the first claim which Mrs. Moosun has brought, and in so doing I shall record that in my view that claim is totally without merit.

[49]The second and more recent claim (HC-2015-004041) is the claim which, as I indicated, has been brought against the bank and its solicitors by Mrs. Moosun, her children and her dogs. The claim form reads as follows:

“Words would not be able to describe the losses and suffering to me and my children caused by the defendant, HSBC/First Direct and Shoosmiths, discrimination contrary to the Equality Act 2010, our right to respect for our private and family life and our home so being interfered with disproportionately contrary to Article 8 of the European Convention on Human Rights.”

The claim is said to have a value of £5.5m, but no particulars are provided. The claim is said to have a value of £5.5m, but no particulars are provided.

[50]Quite apart from the obvious lack of any details to support the claims, Miss Wilmot-Smith points out that a claim under the Equality Act should be brought in the county court pursuant to section 114 of the Equality Act 2010 and there is no indication in that statute that the claim is properly brought in the Chancery Division. I agree. Moreover, there is nothing in the claim which indicates the basis upon which Mrs. Moosun suggests that any protected characteristics of hers are said to have been the subject of discrimination, harassment, or victimisation, by the bank. Nor does Mrs. Moosun even attempt to substantiate the figure of £5.5m.

[51]The only document provided in support of the claim is a statement of Mrs. Moosun, dated 11th August 2015, which is attached to the claim form. It contains the same paragraphs as the statement exhibited to the first claim to which I have referred (HC-2015-003413), but with the addition of two paragraphs. The first is a long paragraph complaining about her treatment and alleging that Mrs. Moosun has:

“hardly been given a right of audience under Article 6 and there is a blatant disregard of Article 8 and the children legislation of 1989. The welfare of her family is totally ignored.”

[52]Quite apart from the point that this is a repetition of the ECHR points which have already been made and rejected, it seems to me that there is no basis whatsoever for a suggestion that any of the judges who have heard the matters have either denied Mrs. Moosun a fair hearing or have in any way discriminated against her, or have infringed her human rights. Mrs. Moosun has on occasions been represented and was represented in the early proceedings in the county court and I have already indicated that significant submissions, both written and oral, have been made by her and on her behalf but rejected by the courts.

[53]The second additional paragraph states, “We must add that due to Mrs. Moosun’s involvement in her political career being a critic to the Government, judiciary, police, and other organisations in her last electoral campaign, all her cases are mainly politically motivated to victimise her and her family.” There are, however, no material facts set out in support of any of those further allegations.

[54]It therefore seems to me, again, that there is nothing in this action by Mrs. Moosun which adds to the matters which have previously been litigated and decided against her. It is an abuse of process for her to seek to re-litigate these matters. I propose to strike out this claim and to record that that it is totally without merit.

A General or Extended Civil Restraint Order

[55]I finally turn to the question of whether to make a civil restraint order against Mrs. Moosun. The application before me seeks either a general civil restraint order or an extended civil restraint order. Having decided to strike out Mrs. Moosun’s statements of case on the basis that they were wholly without merit, I am also obliged, pursuant to CPR 3.4 sub-rule (6)(b), to consider whether it is appropriate to make a civil restraint order against Mrs. Moosun.

[56]Civil restraint orders are dealt with under Practice Direction 3C which supplements CPR 3.11. An extended civil restraint order may be made where a party has persistently issued claims or made applications which are totally without merit. It prohibits the person subject to the order from issuing claims or making applications in specified courts 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 nominated judge.

[57]A general civil restraint order is wider and is capable of being made where the party against whom the order is made persists in issuing claims or making applications which are totally without merit in circumstances where an extended civil restraint order would not be sufficient or appropriate.

[58]The guidance that has been given by the courts in relation to such orders can be found in two decisions of the Court of Appeal, Bhamjee v Forsdick

[2004] 1WLR 88

and Mahajan and Department for Constitutional Affairs

[2004] EWCA Civ 946

[59]In Bhamjee, after having described the common law jurisdiction to restrain vexatious and abusive litigation, the Court of Appeal referred to extended civil restraint orders in paragraph 41, stating:

“because the nuisance represented by vexatious litigants is steadily increasing we consider the courts should now be more willing to make extended civil restraint orders of the type approved by this court in Ebert and Venvil [2000] Ch. 484.”

[60]Then at paragraph 42, the Court of Appeal added:

“An extended civil restraint order will identify the jurisdiction in written applications for the requisite permission should be made. It should be made for a period not exceeding two years. By the time the order comes to be made, the litigant for whom the further restraint has been adjudged necessary will have exhibited not only the hallmarks of vexatiousness but also the hallmarks of persistent vexatiousness. We do not include the word “habitual” among the necessary criteria for an extended civil restraint order but there has to be an element of persistence in the irrational refusal to take “no” for an answer before an order of this type can be made. The duration of the order may have to be extended if this is considered appropriate but it should not be extended for a greater period than two years on any given occasion.”

[61]The reference to vexatiousness in that paragraph was to a dictum of Lord Bingham in Attorney General v Barker

[2001] FLR 759

, at paragraph 19 where Lord Bingham said that “vexatious” was a familiar term in legal parlance, and added that, “the hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary proper use of the court process.”

[62]In Attorney General v Barker, Lord Bingham went on to give an explanation of the words “habitually” and “persistently” which appeared in section 42 of what was then the Supreme Court Act of 1981, as follows:

“The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action perhaps with minor variations after it has been ruled upon in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give any effect to orders of the court. The essential advice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop.”

[63]Finally, in Bhamjee v Forsdick the Court of Appeal dealt in paragraphs 43 and 44 with the general civil restraint order as follows:

“The court’s experience now shows that an even wider form of order may be necessary for a particularly rare type of litigant. The civil restraint order and an extended civil restraint order can only restrain the litigant in the context of the litigation he is currently conducting and other litigation to like effect. In paragraph 28 above, we have cited the passage in Lord Woolf’s judgment in Ebert v Venvil in which he explains the basis on which a judge may make an order with an effect wider than the particular proceedings in which he is engaged. It is now clear that it may be necessary because a litigant’s vexatious activities are proving to be such a drain on the resources of a court, for a judge of the court to make an order restraining him from commencing any action or making any application in that court without the prior permission of the court.”

The reference to Lord Woolf’s judgment in Ebert v Venvil was a reference to the ability of the court to extend its power to restrain proceedings in front of itself to restraining other proceedings that are unidentified but anticipated and would cause serious loss to the defendants to those proceedings.

[64]The Court of Appeal went on to make the point that a general civil restraint order may be needed so as to avoid any argument as to whether a particular fresh process is or is not caught by an extended civil restraint order in a case in which there is concern that the litigant would seek to formulate proceedings in such a way as to raise an argument that he did not need leave.

[65]Taking into account those authorities and guidance, it seems to me, first of all, that this is a case in which it is necessary for the court to make a civil restraint order against Mrs. Moosun. The long and tortured history of the litigation which Mrs. Moosun has instituted to challenge the possession proceedings taken by the bank by every means legitimately and illegitimately available to her, indicates very forcibly that Mrs. Moosun is a litigant who is simply not prepared to take “no” for an answer.

[66]Mrs. Moosun has made repeated applications and issued proceedings in her own name (and in the names of her children and her pets) against the bank, its advisers, and a number of other people who have become involved in the possession proceedings and the auction leading to the sale of her house. As I have indicated, a considerable number of those claims and applications have been held to be totally without merit. Some have also been issued in breach of a previous limited civil restraint order made against her in the county court. I consider that it is right to characterise her conduct as persistently issuing claims or making application which are totally without merit.

[67]The history that I have recited also indicates that Mrs. Moosun is in the habit of bringing proceedings in different forms and in different tribunals. Many of her claims and applications do not make clear the basis of her complaints and make unparticularised allegations, including allegations of fraud and conspiracy, against a wide range of people. She also appears to be labouring under a considerable misapprehension as to the appropriate scope of relevant legislation and of the proper procedures of litigation as indicated by the involvement of her children and her pets in proceedings.

[68]In these circumstances it seems to me that Mrs. Moosun is one of those very rare litigants for whom an extended civil restraint order would not be sufficient or appropriate, and that it is necessary to make a general civil restraint order against her. I think it would be impossible to construct an extended civil restraint order in a form which would be clearly capable of catching whatever new proceedings that Mrs. Moosun may dream up. The very fact that she is prepared to make unparticularised and wide-ranging allegations of a conspiracy against her by the judges who have been involved in dealing with her and the professionals involved in the sale of her house indicates to me that, unless a restraint is made in general form, it is likely that she will try to find ways of evading the restraint. I also do not think that she should be given any encouragement to evade the restrictions of an extended civil restraint order in the way that she ignored or evaded the limited civil restraint order previously made against her in the County Court.

[69]I do not regard the making of a general civil restraint order against Mrs. Moosun at this juncture as being in any way draconian or disproportionate; indeed, the long history of litigation that I have outlined indicates that it is a necessary and appropriate step to take to stop the drain on the resources of the courts caused by Mrs. Moosun. There is no evidence before me that Mrs. Moosun has any other genuine claims that she wishes to bring or pursue.

[70]In those circumstances, it seems to me that it is appropriate for there to be a general civil restraint order so that Mrs. Moosun will be obliged to apply to a judge on paper for permission to bring any form of proceedings in the High Court or any County Court. I propose to make a general civil restraint order against Mrs. Moosun for the period of two years and I will hear counsel on any particular features that need to be addressed in drafting the order.