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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Prompt Motor Ltd v HSBC Bank Plc [2017] EWHC 1487 (Ch) (20 June 2017) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2017/1487.html Cite as: [2017] EWHC 1487 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Rolls Building, Fetter Lane, London, EC4A 1NL
		20/06/2017

HHJ Paul Matthews :

Introduction

1. This is my judgment on two applications. First, there is an application made by the claimant company by notice dated 6 March 2017, for an order setting aside an order of Mr Justice Peter Smith dated as long ago as 27 October 2011, whereby the judge refused permission to appeal to the claimant against the order of Master Price of 24 May 2011, granting summary judgment to the defendant, both on the claimant's claim and on the defendant's counterclaim. The second application is that of the defendant, by notice dated 5 May 2017, for an order, in the event that the claimant's application is dismissed, that the two directors of the claimant, Mr Thirrupathy Kandasamy and Mr Kugananthan Kandasamy, be joined as parties to the claim and that an extended civil restraint order be made against all three of the company, Mr Thirrupathy Kandasamy, and Mr Kugananthan Kandasamy. At the hearing before me on 19 and 20 June 2017, Mr Thirrupathy Kandasamy (accompanied by Mr Kugananthan Kandasamy) appeared for the claimant company, and Mr James Barnard of counsel appeared for the defendant bank.

Facts

2. The sequence of events that has led the parties to this present hearing is long and involved. It begins in June 2001, when the claimant company, which was intended to carry on the business of operating a road vehicle fuel filling station in west London, obtained a term loan for £1,000,000 from the defendant bank. The purpose was to assist with the redevelopment of the claimant's premises and provide it with working capital. The offer letter is dated 13 June 2001. The defendant required security for the loan, in the form of a first legal charge over the premises, and a debenture over its assets. Clause 5 of the standard terms and conditions provided that the defendant was entitled to demand repayment of all sums owed even before the term date, on any failure by the claimant to repay or discharge in full any liability owed to the defendant for monies borrowed when they became due.
3. On 4 July 2001, the claimant granted an all monies legal charge over its premises and also a debenture by way of fixed and floating charge over all its assets. The debenture was a security for the payment of any liabilities to the defendant ("the Debt"), including the term loan and any overdraft. It was enforceable if the Debt was not paid when due, or if the defendant reasonably considered that any claim might be made against the claimant under any agreement or contingent liability by a third party. Once enforceable, the defendant might appoint an administrator or receiver, who would be the agent of the claimant company, so that the claimant would be responsible for such agent's acts, defaults and remuneration.
4. The premises were closed for redevelopment between July 2001 and April 2002. This closure appears to have had an adverse effect on the claimant's business. In 2003 the bank, concerned about the claimant's financial state, obtained a further valuation of the premises, and sought greater security from the company. In November 2003 Mr Thirrupathy Kandasamy gave a personal guarantee of the company's liability, limited to £50,000. On 26 May 2004, the defendant made formal demand by letter of the claimant for sums outstanding on its overdrawn bank account. On 27 May 2004, the claimant not having repaid the overdraft as demanded, the defendant appointed partners in Moore Stephens to be joint administrative receivers of the claimant company under the debenture.
5. After a period of administrative receivership, on 19 September 2006 the claimant company was struck off and dissolved, for the first time. In March 2007 Mr Thirrupathy Kandasamy and Mr Kugananthan Kandasamy were both disqualified for being directors, for five and four years respectively. Three years later, in February 2010, Mr Thirrupathy Kandasamy (but not Mr Kugananthan Kandasamy) was adjudicated bankrupt.
6. Mr Thirrupathy Kandasamy and Mr Kugananthan Kandasamy were evidently concerned that the claimant company, now dissolved, had or might have a claim against HSBC, but that that claim might be reaching the end of the six year limitation period. They therefore sought permission to issue the claim form against the defendant within the limitation period, even before they had obtained an order for the restoration of the claimant company to the register. On 26 May 2010 Mr Justice Vos gave permission to Mr Kugananthan Kandasamy to issue the claim form. In September 2010 Registrar Derrett made an order restoring the claimant to the register solely for the purposes of the claim. In October 2010 the defendant filed a defence and counterclaim to the claim. The counterclaim was in the sum of £626,534 plus interest.
7. In February 2011 the defendant applied for summary judgment on the claim and counterclaim. On 24 May 2011 Master Price in a reserved judgment granted summary judgment to the defendant as sought. He also ordered that the claimant pay the defendants costs, and ordered a payment on account of £15,000. He also refused the claimant permission to appeal. On 13 June 2011 the claimant filed an appellant's notice against the decision of Master Price, seeking permission to appeal from the appellate court. On 17 August 2011, Mr Justice Peter Smith refused permission to appeal on the papers. In his reasons, he said that Master Price had been right, for the reasons he gave. The claimant renewed its application for permission. On 27 October 2011, Mr Justice Peter Smith heard the renewed (oral) application and refused it again.
8. In a transcript of the ex tempore judgment given by the judge on that occasion, he said this in part:

"15. For my part, even if I was in a position to reconsider the decision of Master Price in its entirety, and start the case again, I would have come to entirely the same conclusion. I do not believe there is any basis for criticising his careful judgment and it is quite clear in this case that the bank was perfectly entitled to serve the demand and, with the failure of the company to make the payment, that had the result of being the default entitled them to appoint the receivers. It also was that failure to make that payment on the amount that rendered the company in breach of the long term loan agreement which also became immediately due as a result of that. It also meant that the company was justifiably wound up. It also meant that the bank, if there was a shortfall in the realisable assets, was entitled to present a statutory demand against the directors on their guarantees and make them bankrupt. This all flows from that fundamental proposition. Was the demand valid? If it was, that is the end of the case, unless the appellant can show it has an argument which is more than fanciful, and has a real prospect of success.

16. In my view the company has not identified any argument which has a prospect of success.

17. Therefore, for those reasons I will aver my written decision and refuse the company permission to appeal…"

9. No doubt as a result of the failure of the litigation (or so the defendant thought), the claimant company was struck off the register and dissolved (for a second time) on 20 November 2012. However, in 2015 Mr Thirrupathy Kandasamy made a further application to Mr Justice Peter Smith for an order setting aside the order of 27^th of October 2011. On 25 February 2015 the judge, after hearing Mr Thirrupathy Kandasamy (the defendant apparently not being present or represented), ordered that Mr Thirrupathy Kandasamy should apply to restore the company for the purpose of making the application, which should then be issued and served on the defendant, and set down for hearing, before the judge if possible, and that Mr Thirrupathy Kandasamy had permission to obtain a transcript of the hearing. Unfortunately, no transcript of that hearing has ever been obtained, and certainly none was provided to me. Mr Thirrupathy Kandasamy said that they did not have enough money. What this means is that I have no statement of the reasons why the judge came to the conclusion that he did, even though on one view it might be thought to be inconsistent with the view that he had expressed in 2011. It may be that he was shown further documents or other material which had not been shown to him in 2011, or it may be that he simply changed his mind. I do not know.
10. At all events, on 20 May 2015 Mr Thirrupathy Kandasamy applied to restore the claimant company to the register. He made a similar application at the same time in relation to another company. The application to restore the other company was dismissed by District Judge Hart on 6 June 2016. But on 1 July 2016 an order was made by consent restoring the claimant to the register for the purpose of making this application. It is, therefore, now in its third life. The late author Ian Fleming was wrong.

The claimant's complaints

11. During the course of the hearing I endeavoured to understand from Mr Thirrupathy Kandasamy exactly what the complaints of the claimant company were which justified setting aside the order of October 2011. This was made difficult by a number of matters. First of all there was the absence of the transcript of the hearing before Mr Justice Peter Smith in 2015. Second, the bundle prepared by Mr Thirrupathy Kandasamy and Mr Kugananthan Kandasamy on behalf of the claimant company lacked a number of critical documents, such as of the application notice, the appellant's notice, and any of the important documents from the underlying litigation. Mr Thirrupathy Kandasamy and Mr Kugananthan Kandasamy are of course laypeople, and not lawyers. But, as I have said before, there are not two sets of rules for litigation in this country. Everyone, lawyer or layman, has to play by the same rules. Otherwise the result, as in this case, is increased time, cost, and frustration in trying to deal with an ever increasing litigation workload.
12. Third, the bundle, in two volumes, was not organised in any systematic way. It was not chronological, it was not thematic, it was not even alphabetical. The result was that I was constantly taken during the hearing from pages at one end of one volume to pages at the other end of the other. Fourth, Mr Thirrupathy Kandasamy, on behalf of the company, was scarcely able to contain his enthusiasm for rushing from one point to another, without establishing the bases of any of them. I had constantly to ask him to tell me which page he was referring to, and then what he was referring to on the page, and then what he expected me to get from it. Again, I accept that this is because he is not a trained lawyer, but it goes to explain why it was difficult for me to pin him down as to what exactly was the claimant's complaint, and why this application took longer to hear than it should have done.
13. As I eventually understood the position, the complaint fell into a number of parts. The first related to a second valuation of the assets of the claimant, carried out in April 2003 by a surveyor retained by the defendant, Mr Hunter of Adler and Co. This valuation was lower than the valuation obtained from Chestertons on behalf of the defendant in 2001. The claimant, through Mr Thirrupathy Kandasamy, maintained that Mr Hunter had, without the consent or knowledge of the claimant or its directors obtained incorrect information as to the business of the claimant, and that as a result had reached a wrong conclusion as to the value of the assets. Mr Thirrupathy Kandasamy said the company did not get any notice, let alone reasonable notice of his inspection of the property, and that this was a breach of the contract which the bank had with the company. If the company had had such notice, Mr Thirrupathy Kandasamy said that it would have supplied the correct information. Had the correct information been supplied, the valuation would have been higher, and the bank would not have demanded greater security, in the form of Mr Thirrupathy Kandasamy's personal guarantee.
14. The second part of the complaint was that the bank's letter of demand was unlawful. This had several elements. One was that the letter had an illegible signature, and, so Mr Thirrupathy Kandasamy said, the bank would not tell the company who had written or signed it. A second was that Mr Thirrupathy Kandasamy said the company's relationship manager had said that he did not authorise the letter, and, as Mr Thirrupathy Kandasamy submitted, he should have signed it. In fact, Mr Thirrupathy Kandasamy said that the signature resembled the signature on another document, where a bank official, described as a senior clerk, had witnessed the signature of Mr Thirrupathy Kandasamy. This was Maria Hamilton. Yet in the letter of demand she was described as "manager". Accordingly, Mr Thirrupathy Kandasamy said that this was a fraud, as she was described by one job title in one document and yet another in the demand letter.
15. A further complaint was that the bank's appointment of partners in Moore Stephens as administrative receivers of the claimant was wrong. It was said, first of all, that the company did not receive notice of the appointment, and that the appointment did not take effect until it did, on 3 June. This (it was said) rendered the receivers' actions in relation to the company and its assets in the interim unlawful. Second, it was said that staff from Moore Stephens were working in relation to the affairs of the company from October 2003. Moreover, from that date such staff were trespassing on the premises of the claimant, and doing other things that were wrong, up to the date on which the joint administrative receivers were appointed, on 27 May 2004. Fourth, it was submitted that the bank had no power to appoint partners in Moore Stephens as administrative receivers, as that power did not extend to persons with whom the bank had a prior relationship. Moreover, the staff of Moore Stephens were already conspiring to abort the business. In support of this, Mr Thirrupathy Kandasamy referred me to an email containing a discussion about boarding up the filling station two days before the appointment.
16. In my judgment there is nothing in any of this. The mere fact, for example, that there was an error (if there was) in the figures produced by Mr Hunter does not make his second valuation fraudulent. The defendant bank was entitled to demand more security at any time if it was unhappy with the present position. The alternative would be simply to pull the plug and make a demand for repayment of its overdraft, which it was entitled to do at any time. Once such demand had been made and not met, the defendant would be entitled to appoint administrative receivers and demand the repayment of the term loan. That was what indeed happened.
17. The complaint that the bank would not tell the company who had signed the letter is of no legal significance. The bank had no obligation to inform the company who had signed the letter. The only question was, was the letter authorised by the bank? Even if (and there is no sufficient evidence that this is the case) the letter were not so authorised, it is plain that, by subsequently making the counterclaim which it did, the bank was relying on the letter of demand, and therefore was ratifying what (on this hypothesis) would have been an unauthorised demand. It would therefore have been effective in law in any event. I note that Mr Thirrupathy Kandasamy appears to have signed a receipt for the letter of demand at 1530 hours on 26 May.
18. Despite Mr Thirrupathy Kandasamy reading me provisions from the Fraud Act 2006, I am satisfied that, even if the person signing both the letter of demand and witnessing the guarantee was Maria Hamilton, an employee of the bank, the fact that she was described in one document as manager and in the other a senior clerk, does not affect the validity of the letter of demand. Nor can it properly be described without more as fraud. For one thing, she may have had more than one job title. For another she may have changed her job title between one date and the other. For a third, there is no evidence of any fraudulent intent. It may have been a mistake. Or she may have signed the letter, drafted for someone else, because she was directed to do so by a more senior bank officer. I do not know, and the claimant has not even demonstrated a real prospect of success of showing that it was a fraud.
19. The fact that the company did not receive notice of the appointment of the administrative receivers until 3 June (if true) would not make the appointment invalid until then. Nor is there any prohibition in law on persons being appointed as administrative receivers who have been involved in working for the bank on the affairs of the company from an earlier date, or who have (if it be the case) trespassed on the claimant company's premises before the appointment. There is nothing in the documents to restrict the power of the defendant bank to appoint administrative receivers to the appointment of persons with whom they have not had a previous relationship. There is no evidence worth the name that staff of Moore Stephens were "already conspiring" to abort the business. I was referred to an email about the possibility of boarding up the filling station two days before the appointment. But this seems to me entirely normal in the circumstances. Where an appointment is proposed, the proposed appointees would want to satisfy themselves of what would be needed to do as a matter of urgency should the appointment be made.
20. Mr Thirrupathy Kandasamy also had a point about the exclusion of "unfair evidence" from the summary judgment application. By "unfair evidence" he meant evidence that had been filed by the defendant and was (in his view) either inaccurate or malicious. But the fact that the evidence might be either of these things would not make it inadmissible. It would go to weight. And weight was for the judge to assess, which Master Price had done, and Mr Justice Peter Smith had agreed with in 2011. So there is nothing in this point either.

Law

21. It is not clear from the skeleton argument and the other documents filed on behalf of the claimant exactly what is the legal basis for this application. Mr Thirrupathy Kandasamy referred me to a number of authorities, including Multiplex Construction v Cleveland Bridge [2006] EWHC 1341 (TCC), Lloyd's Bank v Bundy [1975] QB 326, National Westminster Bank v Spectrum [2005] UKHL 41, and the United Nations Universal Declaration of Human Rights, article 17. I cannot see that any of them is other than remotely relevant to this application. I have assumed, as did the defendant, that the claimant is seeking to invoke the power of the court to revoke its own orders. It is clear that the rules of procedure confer the power on the court expressly to vary or revoke orders that have been made: see CPR rule 3.1 (7). I was referred in particular to the notes in the White Book at paragraphs 3.1.10 and following. A number of authorities are referred to in those notes, and I have looked at some of those. A particularly important distinction is between those cases where the order that was sought to be revoked or varied was purely procedural, or interlocutory, and those where it was final, in disposing of the claim or some part of the claim.
22. In Roult v Northwest Strategic Health Authority [2010] 1 WLR 487, the Court of Appeal dealt with an order made by consent, settling a medical negligence case, which was sought to be reopened nearly 2 years later. This was on the basis that one head of the damages claimed related to the cost of looking after the claimant in a local authority home, but the claimant's parents had decided subsequently that a local authority home would always be unsuitable for the claimant. On behalf of the claimant it was contended that the power in CPR rule 3.1(7) was a general power, which could be exercised where the original order was made on the basis of erroneous information, and also where it had been followed by an unforeseen event which destroyed the assumption on which it was made. It was said that in this case the unforeseen event was an experiment with residents in a group home which failed.
23. The judge refused to reopen the settlement order. The claimant appealed. But the appeal was dismissed. Lord Justice Hughes, with whom Lady Justice Smith and Lord Justice Carnwath agreed, said this:

"15. There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order… I agree that in its terms the rule is not expressly confined to procedural orders… I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR rule 3.1(7) cannot bear the weight which Mr Grimes' argument seeks to place on it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – and interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned … can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part.… The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist."

24. That case concerned a final order, one disposing of the claim. The present case is similar, concerning an order refusing permission to appeal an order granting summary judgment, on a consideration of the merits of the claim and counterclaim. Many of the other cases referred to in the notes to the White Book on this rule, however, concern interlocutory or case management orders. They include Tibbles v SIG plc [2012] EWCA Civ 518 and Thevarajah v Riordan [2015] UKSC 78. In my judgment, they are not relevant to the decision which I have to make. But there are at least two other decisions concerning final orders which I should mention. One is Smith v QBE Insurance (Europe) Ltd [2010] EWHC 3172 (Ch), a decision of Mr Justice Norris, and the other is Satoshi Kojima v HSBC Bank plc [2011] EWHC 611 (Ch), a decision of Mr Justice Briggs.
25. In the QBE case, QBE had presented a winding up petition against a company called Surety Guarantee Consultants Ltd ("SGC"). At the same time, another company called Templeton Insurance was making a claim against SGC for commission in the sum of $371,498. Fearing that the company would be ordered to be wound up before it could obtain judgment, Templeton persuaded SGC to make admissions, on which Templeton obtained a judgment for the sum of $371,498. Subsequently, it became clear that SGC would not be able to pay any such sum to an unsecured creditor. But it might be able to pay something to a secured creditor, or one who had a proprietary claim. Templeton decided to claim a proprietary interest in the money by virtue of a constructive trust. Templeton sought a variation of the judgment on admissions. The master made the order sought. QBE appealed.
26. Norris J, allowing the appeal, said this:

19… A literal reading of CPR 3.1(7) would therefore appear to confer upon the court had power to revoke that order notwithstanding that it was a final order disposing of the entire case between the parties, and after the making of which the court was functus officio. Mr Comiskey submits that the rule cannot be so read and that there is no jurisdiction to set aside a final order (provided that the order is complete in itself and does not contemplate the further involvement of the court): or alternatively, if there is such a jurisdiction, it plainly ought not to have been exercised in the instant case.

20. In my judgment Mr Comiskey is probably right in the first of those submissions: but I accept (and ground my decision on) the second."

27. The judge then referred to two decisions of the Court of Appeal, Enron (Thrace) Exploration v Clapp [2005] EWCA Civ 1511 and Roult v Northwest Strategic Health Authority. He continued:

"22 … These observations support the decision of Mr Justice Aikens at first instance in the Enron case [2005] EWHC 401 at paragraph [49] that CPR 3.1(7) does not permit a default judgment to be reopened. The commentary of Lord Justice Hughes is also consistent with the course which Mr Justice Lindsay adopted in Russell Cook Trust Company v Prentis [2003] EWHC 1435 where (probably in exercise of the inherent jurisdiction: see paragraph [37]) he varied a final order he had made in a case in which the terms of the final order indicated that the court had retained seisin of the matter.

23. However, I decline to decide the jurisdiction point when there is another ground upon which my decision can be based. I hold that in the light of the arguments which were addressed to me (but were not addressed to Master Foster) it would be wrong to exercise any power under CPR 3.1(7) to set aside any part of the final judgment obtained in May 2007.

24. These are my reasons: –

(a) the principles upon which final judgements may be varied or set aside are limited in number, of long-standing and well founded upon a clearly articulated public policy. This case does not fall within them. For a new procedural rule to displace or to extend those principles in any way a truly exceptional case would be required: and this is not such a case.

(b) The party seeking to set aside the 2007 judgment is the party in whose favour judgment was given, a judgment obtained on that party's own terms. In essence, Templeton is simply saying that in 2007 it got exactly what it asked for but it now wishes it had asked for something different.

(c) This is not truly a case of 'erroneous information' … All of the information before the court came from Templeton. The 'mistake' was made by Templeton: but a mistake by a party does not justify reopening a final decision …

(d) it makes no difference that the final order which disposed of the action is made without an adjudication by a judge of the merits. A final order is a final order, whether it results from an admission, a default by the defendant, consent of the defendant, proof before a judge at a trial where the defendant does not appear, or an adjudication on the merits after a fully contested trial.

25. For these reasons I consider it inappropriate to exercise jurisdiction under CPR 3.1(7) (assuming it to exist). I will therefore in exercise of the power conferred by CPR 40.9 set aside the order of Master Foster dated 30 April 2010, dismiss the application on which that order was made and restore the 2007 judgment."

28. The second case (Kojima v HSBC Bank) was one where Mr Kojima admitted liability for £158,000 owed to the bank, but disputed a balance claimed. The District Judge ordered that, unless Mr Kojima executed the charge for the admitted part of the debt over his property, the bank should be at liberty to enter judgment for that amount. Mr Kojima executed the charge, but subsequently applied to withdraw the admission, to have the order revoked, to amend his defence and to plead a counterclaim. The unless order, although made at a case management conference, was intended to be a final disposal of that part of the claim. It was a final order in substance, though not in form. Subsequently, Mr Kojima obtained legal advice which suggested that he had a defence with a real prospect of success. The county court judge dismissed Mr Kojima's application, and he appealed. On appeal, Mr Justice Briggs referred to a number of cases, including Roult v Northwest Strategic Health Authority.
29. He concluded thus:

"30. In my judgment once the court has finally determined the case, or part of a case, considerations of the type first identified by Mr Justice Patten in Lloyds v Ager-Hanssen would generally be displaced by the much larger, if not indeed overriding, public interest in finality, subject of course to the dissatisfied party's qualified right of appeal.

[ … ]

33 Leaving aside default judgements, with their self-contained regime for setting aside, I consider that a line has to be drawn between orders for which revocation may be sought under Part 3.1(7) upon the alternative grounds first identified in Lloyds v Ager-Hanssen and approved in Collier v Williams on the one hand, and final orders, to which the public interest in finality applies, on the other. I consider that orders made by way of judgment on admissions fall clearly within the second of those categories. Once a party has admitted the claim, and judgment has been given against him on that claim, the other party is in principle entitled to assume that, barring any appeal, there is an end to the matter."

30. In my judgment, the effect of these authorities is clear. Cases of final judgment or orders, including those made on admissions, by default, by consent or, indeed, on summary judgment application, are different from interlocutory or case management orders. In the latter class of case, rule 3.1(7) can be exercised by the court in cases of decision on a false basis or where there has been a material change in circumstances. In the former class of case, including the present one, the bar is deliberately placed higher, in order to satisfy the increased public interest in achieving a final result to litigation.
31. I accept that even a final judgment obtained by fraud can be set aside. But, as at present advised, I doubt whether anything less will do. Nor do I consider that a final judgment can be set aside merely because fresh evidence comes to light or, worse, evidence that was available at the time that the final judgment was given but which was not deployed is now put forward for the first time. A party has the obligation to fight a case, and the whole case, on one occasion, and cannot deal with it in stages as and when convenient; cf Henderson v Henderson (1843) 3 Hare 100.
32. But in any event, to the extent that this is a matter of discretion, I bear in mind that the events with which we are concerned happened in 2004, the claim was not issued by the claimant until 2010, and the defendant (unlike the claimant) acting promptly obtained summary judgment in May 2011. The order the subject of the present application dates from October 2011, and yet this application was only issued on 6 March 2017. On any view this is a very stale claim. As at present advised, I do not see how it could be fairly adjudicated on at this distance of time. For the reasons given, I do not consider that there is any jurisdiction in the court in the present circumstances to set aside the order of 27 October 2011. But if there were then as a matter of discretion I would not exercise it. This application is quite hopeless. It is dismissed as totally without merit.

Civil restraint order?

33. I turn to the second application, for an order joining Mr Thirrupathy Kandasamy and Mr Kugananthan Kandasamy and for a civil restraint order against them and the claimant company. CPR rule 3.11 and the relevant paragraphs of Practice Direction C to Part 3 of the CPR provide as follows:

"3.11 A practice direction may set out –

(a) the circumstances in which the court has the power to make a civil restraint order against a party to proceedings;

(b) the procedure where a party applies for a civil restraint order against another party; and

(c) the consequences of the court making a civil restraint order.

Practice Direction 3C

2.1 A limited civil restraint order may be made by a judge of any court where a party has made 2 or more applications which are totally without merit.

[ … ]

3.1 An extended civil restraint order may be made by –

(1) a judge of the Court of Appeal;

(2) a judge of the High Court; or

(3) a Designated Civil Judge or their appointed deputy in the County Court,
where a party has persistently issued claims or made applications which are totally without merit."

34. So far as the application is against the claimant, I bear in mind that it has been resurrected only for the purpose of pursuing its application. It must therefore sink back into the grave after that application is disposed of. I do not see how in those circumstances there is any risk that the company will be making further applications or bringing further proceedings. There is therefore no point in the application for a CRO so far as concerns the company.
35. The court cannot make a limited civil restraint order under paragraph 2.1 of Practice Direction C to Part 3 unless the person concerned has made at least two applications which have been adjudicated to have been totally without merit. So far as I am aware, although Mr Thirrupathy Kandasamy and Mr Kugananthan Kandasamy have been behind the company's litigation, and have made applications on its behalf, there is no other application that has been recorded as totally without merit. The summary judgment awarded by Master Price and the order of October 2011 of Mr Justice Peter Smith did not suggest that the claim or any application made in it was totally without merit. In order for the court to make an extended civil restraint order the threshold is even higher. It is necessary to show that the person concerned has persistently made applications or issued claims (in different claims) which are totally without merit.
36. Since the application which I have dismissed earlier in this judgment is the only one which I am aware of to be dismissed as totally without merit, it follows that this threshold is not clearly or obviously met. Since I have not dealt with any of the earlier applications, this is not within my own knowledge, and since no transcripts of such decisions are available I cannot gain a sense of whether those judges thought so. In these circumstances I do not see how I can be satisfied that the jurisdiction to make an order against Mr Thirrupathy Kandasamy and Mr Kugananthan Kandasamy arises. The application a for civil restraint order is therefore dismissed.