Banner Universal Motion Pictures Limited v Wiggin LLP & Anor [2025] EWHC 1287 (Ch)

[2025] EWHC 1287 (Ch)Case No CH-2024-000061IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESCHANCERY APPEALSVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 23/05/2025
Before
THE HON MR JUSTICE MELLOR
Between
BANNER UNIVERSAL MOTION PICTURES LIMITEDAppellantWIGGIN LLPRespondentsFOX WILLIAMS LLPRespondent
Approved Judgment regarding an Extended Civil Restraint Order granted against Mr Derek Banner and Banner Universal Motion Pictures LimitedThis judgment was handed down remotely at noon on 23 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HON MR JUSTICE MELLORMr Justice Mellor:

Introduction

[1]On 23 May 2025, I made an Order in this Appeal (‘the dismissal Order’) dismissing an application brought by the Appellant by notice dated 6 May 2025 for orders(1) pursuant to CPR3.1(7) to set aside the Order of Richard Smith J. in this Appeal dated 28 June 2024 and(2) to relist an oral hearing for permission to appeal before me. I also certified the application as totally without merit.[2]Having made that Order, I was obliged by CPR PD 3C, paragraph 1 to consider whether to make a civil restraint order. For the reasons set out in this judgment I decided it was appropriate and right, in all the circumstances, to grant an Extended Civil Restraint Order against the Appellant, Banner Universal Motion Pictures Limited, and against Mr Banner personally. Although the ECRO itself sets out the essential reasons for its grant, I considered it right to set out my reasons more fully in this public judgment.

Applicable Principles

[3]I refer to the provisions in CPR PD 3C. In particular, paragraph 3.1 provides that an extended civil restraint order may be made where a party has persistently issued claims or made applications which are totally without merit. I have had regard to the guidance set out in the authorities including in particular, Sartipy v Tigris Industries Inc. [2019] EWCA Civ 225. I have also had regard to the summary of the caselaw which I set out in my recent judgment in which I gave my reasons for granting a GCRO against Dr Wright: [2025] EWHC 1139 (Ch) at [5]-[19]. Although I have those paragraphs in mind, two particular passages are worth repeating.[4]First, my citation at [8] from Nowak v Nursing and Midwifery Council [2013] EWHC 1932 (QB), in which Leggatt J. (as he then was) gave the following explanation for the CRO regime at [58]-[59]:
“[58]…[T]he rationale for the regime of civil restraint orders 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. Such claims and applications consume public funds and divert the courts from dealing with cases which have real merit. Litigants who repeatedly make hopeless claims or applications impose costs on others for no good purpose… [59] It is important to note that a civil restraint order does not prohibit access to the courts. It merely requires a person who has repeatedly made wholly unmeritorious claims or applications to have any new claim or application which falls within the scope of the order reviewed by a judge at the outset to determine whether it should be permitted to proceed. The purpose of a civil restraint order is simply to protect the court’s process from abuse, and not to shut out claims or applications which are properly arguable.”
[5]Furthermore, as I summarised at [9]:
“When deciding whether to make a CRO and what form of order to make, there are three questions for the court: (i) whether the litigant has persistently brought claims or applications which are TWM; (ii) whether an objective assessment of the risk demonstrates that the person will issue further abusive claims or applications unless restrained; and (iii) what order is just and proportionate to address the risk identified. See Nowak at [63]-[70]; Camden LBC v Saint Benedict’s Land Trust Ltd [2019] EWHC 3576 (Ch) at [44].”
[6]I have also had regard to the holding in CFC 26 Ltd v Brown Shipley & Co Ltd [2017] EWHC 1594 (Ch), approved by the Court of Appeal in Sartipy, that the word ‘party’ in PD3C is wide enough to include a person who was the real party behind the unmeritorious claims or applications even if he or she was not a named party in any of those proceedings.

Relevant Background

[7]Much of this section is based on the summary contained in the judgment of Deputy Master Linwood [2024] EWHC 656 (Ch), which was the subject of the Appeal. In that carefully considered Judgment, DM Linwood set out his reasons for granting summary judgment in favour of the Defendants, making it clear there were multiple grounds for doing so.[8]The grievance which Mr Banner has pursued for more than a decade concerns his conviction that a format devised by him for a TV gameshow entitled ‘Minute Winner’ was copied when another TV game entitled ‘Minute to Win It’ was devised and created.[9]Mr Banner is a Swedish citizen and he brought the first set of proceedings (a claim for breach of the Swedish Trade Secrets Act, the alleged trade secret being his format for ‘Minute Winner’) personally in the Stockholm District Court against Friday TV AB. By a written judgment dated 3 March 2014, the claim was dismissed by the Stockholm District Court. His application for permission to appeal to the Swedish Court of Appeal was dismissed on 30 June 2014 and his further application for permission to appeal to the Swedish Supreme Court was dismissed on 29 July 2014.[10]As recorded in the Judgment of Deputy Master Linwood, Mr Banner then assigned his IP rights to the Claimant/Appellant company. Mr Banner is the sole director of the Appellant and it would appear and I find that he has directed all proceedings brought by the Appellant and, latterly, has represented the Appellant personally.[11]Accordingly, the Appellant brought a claim in the High Court (HC-2016-001395) in copyright, misuse of confidential information and passing off against(1) Endemol Shine Limited(2) Friday TV AB and(3) NBC Universal Global Networks UK Limited. All these claims were based on the allegation that a game show called ‘Minute to Win it’ was derived from the format created by Mr Banner entitled ‘Minute Winner’.[12]A case management conference in that claim was heard by Snowden J. (as he then was) on 8-11 November 2016, resulting in his judgment dated 19 October 2017, the neutral citation for which is [2017] EWHC 2600 (Ch), in which the Judge concluded that all the claims were without realistic prospects of success or barred res judicata or as an abuse of the process. The action was dismissed in its entirety. In that action, the Appellant’s solicitors were Fox Williams LLP and the solicitors acting for the Defendants were Wiggin LLP.[13]As recorded in the Judgment of Deputy Master Linwood at [16]-[17], Mr Banner then turned his ire on his previous solicitors and even those representing the successful defendants. He proceeded to make allegations of professional misconduct against RPC, the firm representing Fox Williams LLP, and complaints to Aviva, Fox Williams’ insurers, followed by complaints to the SRA of professional misconduct, dishonesty and fraud against the individual solicitors/partners involved: Mr Wyles at RPC, Mr Oldroyd at Browne Jacobson LLP, representing Wiggin LLP, Caroline Kean of Wiggin LLP and Simon Bennett of Fox Williams LLP.[14]After extensive correspondence, on 20 October 2023, the Appellant brought the claim (BL-2023-001403) against those firms of solicitors:(1) Wiggin LLP and(2) Fox Williams LLP. Against Fox Williams LLP, the claim was for professional negligence, breach of the retainer agreement and breach of duty of care, but also, by way of proposed amendments, civil fraud and corruption. The claim was based on various alleged failings by Fox Williams in their conduct of the Appellant’s 2016 claim, including, in particular, their failure to put three particular documents before Snowden J.[15]As against Wiggin LLP, the claim was said to arise out of ‘statements and new allegations by Wiggin made to the Claimant in a letter of 7 February 2019’, a letter written by Caroline Kean, a partner in Wiggin LLP, in the course of the extensive correspondence which preceded this 2023 claim. The allegations against Wiggin LLP were breach of duty and obligation to the Court to disclose relevant facts and documents, and the alleged failings led to the Claimant’s claims being struck out (by Snowden J.). By proposed amendments, the Claimant sought to add an allegation of breach of CPR31 for failure to disclose and further and detailed allegations of dishonesty, fraud and deceit, and perjury, racism and discrimination. The Claimant sought damages in total against both Wiggin and Fox Williams of £55m, plus aggravated and exemplary damages for fraud and corruption against Fox Williams.[16]As summarised by DM Linwood, this was the situation which he had to address in his judgment of 23 February 2024 which underpinned his two Orders of the same date the subject of the Appeal. As I have already indicated, he decided that summary judgment should be granted against the Claimant and in favour of the defendants on the entire claim, on multiple grounds.[17]The Appellant’s application for permission to appeal came before me for consideration on the papers. Just over a year ago, by my Order dated 21 May 2024, I refused permission to appeal on the papers. My reasons were as follows:
“1. I have read and considered the Appellant’s Notice and the whole series of lengthy documents in support of the Grounds of Appeal and the Appellant’s Skeleton Argument in the Appeal Bundle at pages 92-263 plus the lengthy exhibit DB, comprising 226 pages. 2. I have also read the Approved Transcript of the Judgment of Deputy Master Linwood. It is a carefully considered Judgment which provides reasons for all the conclusions reached. Furthermore, it demonstrates that the Judge was satisfied there were multiple grounds on which to grant summary judgment in favour of the Respondents. 3. Having spent many hours considering all the lengthy complaints and accusations made by Mr Banner in support of the Appeal, I was unable to find any argument which stood a realistic chance of success. 4. I came very close to certifying that this Appeal was wholly without merit. A consequence of that is that if Mr Banner wishes to avail himself of the opportunity to renew his application for permission to appeal orally, he would be well advised to focus on what he perceives to be his best points and to make them as succinctly as possible.”
[18]In paragraph 2 of that Order, I gave the Appellant the opportunity to renew his application for permission to appeal at an oral hearing, an opportunity he took up. In the usual way, for reasons of judicial economy, I directed the hearing take place before me on a date to be fixed.[19]As happens with reasonable frequency in Chancery Appeals, the Judge who had decided the issue on paper (i.e. me, on this occasion) was not available on the date mooted for that oral hearing, so it was listed before another Judge of the Chancery Division in the normal way. This did not involve any breach of my Order, nor any procedural irregularity, as Mr Banner submitted in his application, because all Judges of the High Court have equal power, authority and jurisdiction (subject only to where the Senior Courts Act 1981 expressly provides otherwise, and there is no exception which applies here). Certainly, another Judge of the Chancery Division plainly had jurisdiction to hear and determine an application for permission to appeal in this Chancery Appeal.[20]So Richard Smith J. heard the renewed oral application for permission to appeal, made by Mr Banner as director of the Appellant. By his Order dated 28 June 2024 (stamped on 1 July 2024), Richard Smith J. refused permission to appeal and certified the application was totally without merit.[21]In the application I had to consider, Mr Banner submitted that Richard Smith J. had lacked jurisdiction to hear and determine the renewed application for permission to appeal. This was a hopeless submission. It was based on his assertion that a breach of my Order of 21 May 2024 had occurred.[22]Furthermore, the fact that Richard Smith J. considered Mr Banner’s renewed oral application for permission to appeal did not in any way undermine the integrity of the appellate process nor did it constitute a procedural irregularity (as Mr Banner alleged), since Richard Smith J. considered the issue afresh and reached his own conclusion, which was to reject that application. Furthermore, Richard Smith J. was entitled to and did declare that application for permission to appeal to be wholly without merit, as he did in his Order[23]Refusing to take ‘no’ as the answer, Mr Banner then applied to reopen the Appeal pursuant to CPR 52.30(1). His application was considered on the papers by Trower J. and rejected for the extensive reasons set out in his Order dated 25 July 2024. Trower J. also certified that application as totally without merit.[24]Since then, over many months Mr Banner has bombarded the Court with letters and emails which make it clear that he continues to refuse to recognise the validity of the Orders made by Richard Smith J. and Trower J.. Despite being told (correctly) that his Appeal was at an end, Mr Banner refuses to accept this. His repeated correspondence culminated in the application which was the subject of my Order of today’s date, which I have rejected as totally without merit.[25]As I have already said, DM Linwood delivered a carefully considered judgment. He concluded that the Claimant’s claims against Fox Williams and Wiggin should be dismissed on the grounds that there were no reasonable grounds for bringing the claim and it was an abuse of process. He ordered costs to be paid on the indemnity basis and certified that each of the claims were totally without merit and abusive ‘particularly in respect of allegations made against those firms and the individuals within them’.[26]Against that background, Mr Banner pursued this Appeal in the same vein, refusing to take ‘no’ as the answer. Accordingly, the certifications of totally without merit of which I am aware relate to: i) Each of the claims brought against Wiggin LLP and Fox Williams LLP. ii) The renewed oral application for permission to appeal before Richard Smith J. iii) The application to re-open the Appeal, determined by Trower J. iv) The application I dealt with to set aside the Order of Richard Smith J.

Analysis

[27]In the light of that background, I can turn to consider the three considerations I set out at [5] above. Leaving aside the precise number of certifications of totally without merit, I am entirely satisfied that Mr Banner, via his company, the Appellant, has persistently issued claims or made applications which are totally without merit. In so finding, I also find that Mr Banner was the ‘real party’ behind all the unmeritorious claims and applications brought by the Appellant.[28]As regards the second consideration, ‘whether an objective assessment of the risk demonstrates that the person will issue further abusive claims or applications unless restrained’, it can be important to note that a rational person would have taken ‘no’ for the answer long before reaching this point. The persistent issuing of claims or applications which are totally without merit is an indication, to be judged objectively in the light of the particular circumstances of the case, that the litigant in question is unable to view the situation rationally, instead being motivated by an overriding sense of personal injustice, regardless of the merits. Furthermore, a rational person might struggle to conceive of what such a litigant might attempt next, but the required objective assessment of risk must take account of what has already transpired.[29]When assessing the risk of Mr Banner issuing further abusive claims or applications, it is necessary to have regard to his persistent refusal to accept the rejection of his claims and applications, a course of conduct which commenced in the Swedish District Court and which has continued in the two sets of proceedings brought in the High Court and in his conduct of this Appeal.[30]In my judgment concerning Dr Wright at [91]-[94], I drew attention to the human cost which abusive proceedings can cause to individuals who are caught up in them. Although the circumstances here are very different to those I considered regarding Dr Wright, nonetheless it is relevant to keep in mind the accusations of professional misconduct, fraud and dishonesty which Mr Banner has levelled against individual solicitors in his crusade, all of which have been dismissed as totally without merit.[31]In all the circumstances, I concluded that there is a risk that Mr Banner will seek to issue further abusive claims or applications, unless restrained.[32]Turning to the third consideration: ‘what order is just and proportionate to address the riskidentified’, I was satisfied that a CRO limited to just these proceedings would not provide adequate protection, but also that a General Civil Restraint Order was not justified. I was satisfied that, in the circumstances, an Extended Civil Restraint Order must be granted against both Mr Banner and his company, Banner Universal Motion Pictures Limited.

Cited in 1 later judgment