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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> The Society of Lloyd's v Noel [2015] EWHC 734 (QB) (20 March 2015) URL: http://www.bailii.org/ew/cases/EWHC/QB/2015/734.html Cite as: [2015] 1 WLR 4393, [2015] EWHC 734 (QB), [2015] WLR(D) 142

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/03/2015

Mr Justice Lewis:

INTRODUCTION

1. This is an application by the Society of Lloyd's ("Lloyd's") for an extended civil restraint order against Mrs Sally Rosemary Noel, or alternatively, a limited civil restraint order. The application is made in accordance with directions given by Popplewell J. following a hearing on 16 December 2014 of an application made by Mrs Noel for various orders. Popplewell J. struck out her application and certified that it was totally without merit. Lloyd's invited Popplewell J. to make an extended civil restraint order against Mrs Noel. Popplewell J. declined to make an order at that hearing as he considered that the appropriate course was to adjourn that application and to give directions as to how the application should be dealt with. That would enable Mrs Noel to have an opportunity to prepare what she would wish to say in opposition to that application.
2. The directions made by Popplewell J. required Lloyds to issue an application for an extended civil restraint order no later than 16 January 2015 and for that application to be listed for disposal no later than 1 April 2015 with a time estimate of ½ day. Lloyds issued the relevant application on 15 January 2015 and the application was listed to be heard on 12 March 2015. Popplewell J. also directed that Lloyd's and Mrs Noel file any evidence no later than 10 days prior to the hearing of the application and a bundle of document for use at the hearing be lodged with the court no less than 7 days prior to the hearing and skeleton arguments were to be lodged 2 days in advance of the hearing. Lloyd's did lodge its evidence, a bundle and a skeleton argument in accordance with the order. Mrs Noel attended the hearing, assisted by a Mckenzie friend. She had been unable to lodge her evidence or a skeleton argument in advance but I permitted her to rely on evidence and material she produced at the hearing and to make submissions about that material so far as relevant to the present application. Mrs Noel applied for an adjournment of the hearing at the outset. That application was refused and a separate judgment, setting out reasons, was given. The hearing proceeded. I am grateful for the courteous way in which Mrs Noel advanced her arguments before me as to why she resisted this application. I am also grateful to Mr Fisher, counsel for Lloyd's, who ensured that all relevant authorities were drawn to the court's attention. Mrs Noel was given an opportunity to make further written submissions if she wished following the hearing and Lloyd's were given the opportunity to reply. Mrs Noel submitted a number of documents. One was a single page entitled "Sally Noel's Submissions to Mr Justice Lewis". A second document comprised 5 pages, 4 of which were submissions and the fifth was a draft order. That appeared to have been prepared by Mrs Noel's McKenzie friend and, in the first document (prepared it seems by Mrs Noel herself) it is stated that Mrs Noel will not sign it as she considers that it is only partially accurate. The third document was an extract of proceedings before Cranston J. Mr Fisher, on behalf of Lloyd's supplied written submissions in reply. I have considered all the documents supplied subsequent to the hearing in reaching my judgment whilst bearing in mind the qualification that one document is only partially accurate.

THE BACKGROUND

3. The background to this application is set out fully in the judgment of Popplewell J in The Society of Lloyd's v Noel [2014] EWHC 4536 (Q.B). This judgment should be read alongside that earlier judgment. This judgment does not repeat all the matters set out in that earlier judgment but simply identifies those factual matters which are most relevant for the purposes of dealing with the application for an extended restraint order. The parties can be assured, however, that I have considered all the points made by each party.

Mrs Noel and Her Claim Against Lloyd's

4. Mrs Noel is a former underwriting member of Lloyds. She suffered severe financial loses. She has for some time disputed liabilities said to be owed by her in relation to the meeting of claims for asbestos-related injuries. Mrs Noel considers that she has been the victim of fraud or deception in connection with the claim that she was liable for those losses and also in connection with a subsequent settlement agreement and proceedings brought to enforce that agreement.
5. By way of background, on 9 November 1999 Cresswell J. gave directions in proceedings brought by Lloyd's against William Jaffra and others. One of the purposes of those directions was to require that all members of Lloyd's who wished to make allegations of fraud arising out of asbestos-related claims did so by a particular date. Failure to give notice would preclude any person from bringing such a claim without the permission of the court. Mrs Noel considers that her circumstances are different from those intended to be dealt with in the Jaffra proceedings. She did not give notice pursuant to the Jaffra order that she wished to make allegations of fraud. She did not apply for permission to bring proceedings alleging fraud.
6. Mrs Noel did commence proceedings for fraud against Lloyd's and previous chairmen of Lloyd's. That claim was dismissed. An application for permission to appeal was dismissed by the Court of Appeal. On 2 May 2007, the Court of Appeal gave judgment relating to four applications made by Mrs Noel. One application was for an order requiring Lloyd's to release a verification form for examination by a graphologist. Mrs Noel contended that that form had been relied upon by Lloyds as evidencing the transfer of certain liabilities but claimed that the signature on that form was not hers. The Court of Appeal dismissed all four applications and certified that the applications were totally without merit.
7. On 16 October 2007, Gross J. as he then was, dismissed an application made by Mrs Noel against Lloyd's alleging fraud in connection with her liability for asbestos-related claims. He certified that that application was totally without merit.

The First Extended Civil Restraint Order

8. Against that background, with a total of five applications having been certified as totally without merit, and critical observations made of other applications, Steel J. made an extended civil restraint order against Mrs Noel on 16 November 2007. Steel J. said at paragraph 9 of his judgment in Noel v The Society of Lloyd's [2007] EWHC 2979 (QB) that:

"This is an appropriate case in which to make a Civil Restraint Order in the light of the number of times Mrs Noel has sought to bring claims and to make applications in respect of Lloyd's alleged fraud and her liability of the Equitas premium and a whole range of other matters associated with her membership of underwriting at Lloyd's. Because the range of those applications is so broad, it is not appropriate to make a Limited Restraint Order. It is appropriate to grant an Extended Civil Restraint Order as defined in the Rules."

9. That order was to last for two years. It was subject to an exception enabling Mrs Noel to file and serve an opposition to a bankruptcy petition served by Lloyd's on 23 May 2007.

The Settlement Proceedings and the Injunction

10. Bankruptcy proceedings were commenced by Lloyd's against Mrs Noel to recover monies said to be due from her by virtue of her membership of Lloyd's. In due course, those proceedings were settled and the terms of the settlement are contained in a confidential settlement agreement. I do not propose to set out the terms of that agreement, save to observe that one of the clauses obliged Mrs Noel to cease and refrain from referring to Lloyd's whether directly or indirectly in a way considered to be critical.
11. Mrs Noel did not comply with the terms of the settlement agreement. She considers that she was forced to enter that settlement agreement under duress. Lloyd's brought an application for an injunction. The application was heard by Cooke J. on 28 October 2009. Mrs Noel attended part of the hearing before Cooke J. but then left due to health reasons and the need to attend hospital. A friend was acting as her McKenzie, friend. He remained throughout the hearing but Mrs Noel is of the view that he would not have been in a position to present the evidence of alleged duress relating to the settlement agreement. In any event, Cooke J. granted an injunction which, amongst other things, restrained Mrs Noel from publishing or disseminating information, documents or other material alleging fraud or dishonesty against Lloyd's where the allegations arose out of, or were based upon, amongst other things, her membership of, or underwriting at, Lloyd's. That prohibition is subject to certain exceptions. Cooke J. refused permission for Mrs Noel to appeal against his order, as appears from paragraph 7 of the order itself. Mrs Noel did not apply to the Court of Appeal for permission to appeal against the injunction imposed by Cooke J.

The Expiry of the Extended Civil Restraint Order in November 2009

12. The extended civil restraint order made by Steel J. expired in mid-November 2009. Lloyd's applied for an extension of that order. That application was considered and refused by Eady J. on 26 January 2010. His reasons are contained in his judgment in Noel v The Society of Lloyd's [2010] EWHC 360 (QB). Eady J. considered that it would not be appropriate to extend such orders automatically. He said this:

"23. I think in the context of a proposal to extend the civil restraint order, at the expiry of the period of two years, what the court would need to focus on particularly is evidence which suggests that there is good reason to apprehend vexatiousness and, in particular, persistent vexatiousness, for the future. That might be demonstrated by conduct or by threats, perhaps, but there must be, I would have thought, a reasonable apprehension that vexatious applications or claims will be made once the period expires or, in this case, when the undertaking expires following the court's ruling. That must be evidence based and, as I have indicated, the evidence relied upon here is that to be found in paragraphs 5 to 12 or Mr Demery's witness statement.

24. I have no doubt that the Society of Lloyd's and its representatives have a genuine apprehension or concern that trouble might break out, if I could put it that way, once the protection of the ECRO is removed. That is based on their past experience and on the background of vexatiousness in the past, all those matters which were taken into account by Steel J when he made the order in November 2007.

25. But their apprehension, based on the past, does not seem to me necessarily to make it appropriate to grant an extension of the order at this juncture. There must be something more solid in my judgment. The mere request for documents and information on 2 November would not justify such an apprehension. The mere negative failure to comply with the request for an assurance as to the future does not amount to a threat or solid grounds for an apprehension or fear as to the future.

26. It is said to be irrational on Mrs Noel's part that she turned down the offer that was made to her in November, which was that the outstanding costs order of £16,000 would not be enforced if she were to give such an undertaking. That was such a carrot, it is suggested, that she must have in mind an intention to make further applications or to launch further claims of a vexatious nature.

27. I think that is to infer too much from her limited conduct so far and I feel in all the circumstances, therefore, that the criteria have not been fulfilled to date. I would add, however, if evidence emerges in the future, in particular the near future, that there is an intention to make any vexatious claim, or an application launched, then the matter will be reviewed in the light of that further evidence."

Contempt Proceedings for Breach of the Injunction

13. Mrs Noel did not comply with the injunction granted by Cooke J. She has breached it on two occasions. In June 2010, Tugendhat J. found that Mrs Noel had been guilty of a breach of the injunction in a number of ways, including by publishing or disseminating information, documents, or other material alleging fraud and dishonesty against Lloyd's in the manner prohibited by paragraph 4 of the injunction. He ordered that there be no penalty for contempt. In informing Mrs Noel of his decision and the fact that he was not proposing to impose a penalty, Tugenhadt J. said this:

"But I do need to make very clear to you that you have not helped yourself today by returning to the underlying dispute and denying the validity of the settlement agreement. Cooke J gave a judgment. He considered these matters. You did not appeal. The order of Cooke J is what it is and it is binding. The more you write and tell this court and others that that is not binding, the more the court is going to fear that you will continue to breach the injunction. There has to be finality."

14. On 7 November 2013, Mrs Noel again was found to be in contempt of court by breaching the injunction granted by Cooke J. That finding was made by Jay J. In the course of his judgment, Jay J. observed that the purpose of the settlement agreement was, amongst other things, to bring the long-standing dispute between Mrs Noel and Lloyd's to an end and to prevent Mrs Noel from making allegations of fraud. He found that the injunction was intended to reflect the compromise agreement. He found that there had been a clear breach of paragraph 4 of the injunction in that Mrs Noel had sent correspondence to third parties which referred to Lloyd's in a manner which was critical and adverse to Lloyd's. He committed Mrs Noel to prison for a period of 28 days but he suspended that order for one year. That one year period expired on or about 7 November 2014. Mrs Noel did not commit further breaches of the order during the one-year period and the suspended committal order was not, therefore, activated.
15. On 27 January 2014, Mrs Noel filed a notice of appeal with the Court of Appeal. The notice sought to appeal against the committal order made by Jay J. Other sections of the notice of appeal also indicated that Mrs Noel wished to appeal against the injunction granted by Cooke J. The grounds stated that the order granted by Cooke J. on 28 October 2009, on which Jay J. relied, should be set aside as "it had been deceptively drafted by Lloyd's and that the injunction that had been granted had been procured by fraud". As Popplewell J. observed in paragraph 20 of his judgment, there was no application for permission to appeal against the order of Cooke J. nor any explanation as to why it was sought to bring the appeal so late. In any event, the Civil Appeals Office indicated that the appeal would be treated as an appeal against the committal order of Jay J. only. The Civil Appeals Office wrote to Mrs Noel on 20 February 2014 indicating that if she wished to seek permission to appeal against the order of Cooke J., she should file a separate notice of appeal and include within it an application for an extension of time. Mrs Noel did not file a notice of appeal and no application for permission to appeal the order of Cooke J. was ever made to the Court of Appeal. In relation to the appeal against the committal order of Jay J., Mrs Noel failed to progress the appeal and did not rectify defects to the appeal bundle. On 11 September 2014 Deputy Master Meacher ordered that the matter stand dismissed with costs.

Further Applications Made by Mrs Noel

16. Following the expiry of the extended civil restraint order, Mrs Noel has made further applications. An application dated 26 July 2010, and issued on 11 August 2010, was dealt with by His Honour Judge Mackie Q.C. on 28 October 2008. The application, in essence, sought to have the injunction granted by Cooke J. discharged on the basis that it had been obtained by fraud and in bad faith. It was alleged in the application notice that the settlement agreement, which the injunction was intended to enforce and which was itself intended to resolve the underlying dispute between Mrs Noel and Lloyd's, was an agreement that Mrs Noel had been entrapped into signing by duress. HHJ Judge Mackie Q.C. refused the application. By an order made on 28 October 2010, he certified that the "application is totally without merit". In the course of his judgment, see Society of Lloyd's v Noel [2010] EWHC 3165 (Q.B), he said this:

"If Mrs Noel wishes to challenge the decision of Cooke J (and I do not for one moment encourage her to do so because nothing in the material that I have seen suggests to me that Cooke J's order was anything other than wholly correct) then her remedy is not to go to Tugendhat J, and, still less, to me. Her remedy is to seek to appeal to the Court of Appeal out of time, giving reasons why her appeal has real prospects of success and explaining the delay. I re-emphasise, I am not encouraging her to take that step. Indeed I encourage her not to. For that reason, this court has no jurisdiction to deal with the matter. If the court had had jurisdiction, I would, based upon what I have seen and read, have refused relief on the grounds that Mrs Noel's claims are totally without merit."

17. That application was the first application since the expiry of the extended restraint order made by Steel J. which had been certified as being totally without merit.
18. By an application notice dated 1 November 2014, Mrs Noel applied for the following four orders:

"1). An Order permitting the FCA and the City of London Police to investigate Lloyd's crimes perpetrated against me in 2008, prior to the hearing of Lloyd's statutory demand for £21,689-20 and further bankruptcy proceedings, as suggested by Deputy Master Meacher in the order of 10 Sept 2014.

2). An Order to set aside the Injunction Order of 28^th October 2009, on the grounds that it was obtained by fraud, in my absence, so that I can provide the evidence to support my claims to the FCA and Police, which will include recordings of blackmail that I was subjected to in 2008 and since.

3). An Order for a Judicial Inquiry and the hearing recommended by Lord Justice Clarke on 19^th September 2003, in conjunction with this Inquiry prior to any further bankruptcy proceedings.

4). An Order for Lloyd's to release my 1978 Verification Form and 1979 Undertaking, for examination by a Graphologist."

19. That application was amended to add an additional fifth order that Mrs Noel was seeking. That order was expressed in these terms:

"5) An order granting me permission to plead fraud and conspiracy to pervert the course of Justice by Lloyd's Legal Team on the grounds that it is in defence of Lloyd's claim, and my pleadings fall outside Mr Justice Cresswell's Order in 1999 made in the Jaffray case"

20. That was the application considered by Popplewell J. on 16 December 2014. Popplewell J. dismissed the application. In relation to the application concerning the injunction granted by Cooke J, he said this at paragraph 25 of his judgment:

"That application is misconceived for a number of reasons. The first, as Mrs. Noel has been told by judges on a number of occasions, is that the correct procedural method of challenge to the Cooke Injunction is an application for permission to appeal out fo time to the Court of appeal. Mrs. Noel was reminded of this as recently as February 2014 by the Court of Appeal."

21. Furthermore, Popplewell J. considered the arguments put forward by Mrs Noel which were set out in a lengthy document entitled statement of case. That document, with some amendments, together with supporting material was the material produced by Mrs Noel at the start of the hearing before me on 12 March 2015. Popplewell J. explains in his judgment that the threshold for setting aside a judgment on the grounds of fraud is a high threshold and, in essence, requires the production of evidence of facts discovered since the judgment which show a reasonable probability of such fraud as would invalidate the judgment, that is fraud or misrepresentation which substantially contributed to the decision. Popplewell J. carefully considered the material produced by Mrs Noel and concluded that there was no such evidence in this case, setting out his reasons for that conclusion in detail.
22. By an order made on 16 December 2014, and stamped on 19 December 2104, Popplewell J. struck out the application made by Mrs Noel. He ordered that the "Application be treated as "totally without merit" for the purpose of CPR PD 3C". That is the second application, since the expiry of the extended civil restrain order made by Steel J., which has been certified by a judge as being totally without merit.
23. As indicated, Popplewell J. did not accede to the application by Lloyd's for the grant of an extended civil restraint order against Mrs Noel. Rather, he gave directions for such an application to made and heard. It is that application for an extended civil restraint order or, in the alternative, a limited civil restraint order, which was heard on 12 March 2015 and which forms the subject matter of this judgment.

THE LAW

24. CPR 2. 3 provides that a :

" "civil restraint order" means an order restraining a party –

(a) from making any further applications in current proceedings (a limited civil restraint order);

(b) from issuing certain claims or making certain applications in specified courts (an extended civil restraint order); or

(c) from issuing any claim or making any application in specified courts (a general civil restraint order)."

25. Pursuant to CPR 3.11, Practice Direction 3C - Civil Restraint Orders ("PD 3C") sets out the circumstances in which the court has power to make a civil restrain order against a party in proceedings. In relation to limited civil restraint orders, paragraph 2.1 of PD 3C provides that:

"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".

26. Paragraph 3.1 of PD 3C provides that an extended civil restraint order may be made by, amongst others, a High Court judge, where:

"a party has persistently issued claims or made applications which are totally without merit. "

27. Paragraph 3.9 of PD 3Cprovides that:

"3.9 An extended civil restraint order –

(1) will be made for a specified period not exceeding 2 years;

(2) must identify the courts in which the party against whom the order is made is restrained from issuing claims or making applications; and

(3) must identify the judge or judges to whom an application for permission under paragraphs 3.2(1), 3.2(2) or 3.8 should be made."

28. There is provision for extending the duration of an extended civil restraint order. Paragraph 3.10 of PD 3C provides that:

"3.10 The court may extend the duration of an extended civil restraint order, if it considers it appropriate to do so, but it must be not extended for a period of greater than 2 years on any given occasion."

29. The purpose underlying the making of civil restraint orders is summarised in the following terms by Leggat J. in Nowak v (1)The Nursing and Midwifery Council and (2) Guy's and St Thomas' NHS Foundation Trust [2013] EWHC 1932 (QB):

"58 As explained by the Court of Appeal in the leading case of Bhamjee v Forsdick [2004] 1 WLR 88, the 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 and usually at little or no cost to themselves. Typically such litigants have time on their hands and no means of paying any costs of litigation – so they are entitled to remission of court fees and the prospect of an order for costs against them is no deterrent. In these circumstances there is a strong public interest in protecting the court system from abuse by imposing an additional restraint on their use of the court's resources.

"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."

THE MAKING OF AN EXTENDED CIVIL RESTRAINT ORDER – THE ISSUES

30. In the present case, Lloyd's seeks an extended civil restraint order against Mrs Noel. In accordance with paragraph 3.1 of 2CPD, there are, essentially, three issues that the court needs to consider before making an extended civil restraint order, namely:

(1) is the precondition for the making of such an order satisfied, that is has the individual "persistently issued claims or made applications which are totally without merit"?;

(2) if so, and if the court has power to make such an order, is it appropriate in the circumstances to make such an order?;

(3) if so, for what period of time, and on what terms, should such an order be granted?

THE PRECONDITION FOR MAKING AN EXTENDED CIVIL RESTRAINT ORDER

31. An extended civil restraint order may only be made where a party has persistently issued claims or made applications which are totally without merit. The case law gives guidance on the approach to determining what persistence means in such circumstances. In Karim v Charkham and others [2014] EWHC 497 (Admin) Griffiths Williams J. adopted the approach of Lord Bingham C.J. (as he then was) in Attorney General v Barker [2000] FLR 759 at page 764 to section 42 of the Senior Courts Act 1981 which provides powers to restrain a litigant who has "habitually and persistently and without any reasonable ground" instituted what were then called "vexatious" legal proceedings. Lord Bingham C.J said this:

"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 be 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 vice 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."

32. Similarly, the Court of Appeal in Bhamjee v Forsdick and others [2004] 1 WLR 88 adopted a similar approach to civil restraint orders at paragraph 39 where the Court observed that:

"A civil restraint order is likely to be appropriate when the litigant's conduct has the hallmark of one who is content to indulge in a course of conduct which evidences an obsessive resort to litigation and a disregard of the need to have reasonable grounds for making an application to the court. Normally we would not expect a civil restraint order to be made until after the litigant has made a number of applications in a single set of proceedings all of which have been dismissed because they were totally devoid of merit. The characteristics of "vexatious" conduct set out by Lord Bingham of Cornhill CJ in his judgment in Attorney General v Barker [2000] 1 FLR 759 … may be a useful indicator of the need for a civil restraint order."

33. In relation to an extended civil restraint order, the Court of Appeal said this in Bhamjee v Forsdick [2004] 1 WLR 88 at paragraph 42:

"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 period greater than two years on any given occasion."

34. The Court of Appeal in R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536, referred to that approach to the meaning of persistence, whilst noting that, under the new rules, it was sufficient that the claims or applications were totally without merit and that the litigant had persisted in making them. The Court noted that there was no longer a requirement of vexatiousness.
35. In Courtman (Trustee in Bankruptcy) v Ludlam [2010] BPIR 98, Mr Bartley Jones Q.C. sitting as a deputy High Court judge specifically considered the meaning of "persistently" in PD 3C. He noted that paragraph 2.1 of PD 3C provided that a limited civil restraint order could be made where a party has made 2 or more applications which are totally without merit. He considered that the provisions for limited civil restraint orders and extended civil restraint orders reflected a graduated and proportionate response to the problem. He considered that it would therefore be logical to require that a litigant had made a higher number of claims or applications which were totally without merit before making an extended civil restraint order and suggested in paragraph 9 of his judgment that "three unmeritorious claims or applications must be the bare minimum for establishing 'persistence'". Henderson J. also proceeded on the assumption that there must be a minimum of three totally without merit applications for the jurisdiction to make an extended civil restraint order to arise: see paragraph 21 of his judgment in Winsor v Vale [2014] EWHC 957 (Ch). The Court of Appeal in Connah v Plymouth Hospitals NHS Trust [2006] EWCA Civ 1616, considered that the threshold for an extended civil restraint order, which required persistent totally without merit applications or claims, was higher than that for the grant of a limited civil restraint order, which required the making of two or more such applications. That was because the effect of an extended civil restraint order is more draconian.
36. Against that background, Mr Fisher, on behalf of Lloyds, submits that paragraph 3.1 of PD 3C does not, itself, require any minimum number of totally without merit applications to have been made before it can be said that the litigant has persistently made such applications. In any event, he submits that the court is entitled to have regard all such applications made by Mrs Noel, including those made prior to the making of the earlier extended civil restraint order. In those circumstances, Mrs Noel has made seven applications which have been certified as being totally without merit. He submits that that is well above the minimum envisaged by the case law and does establish the necessary persistent making of applications which are totally without merit. Alternatively, he submits that two such applications, at least where there has been an earlier extended civil restraint order, is sufficient to establish persistence for the purpose of PD 3C.
37. The first question in the present case is to establish whether Mrs Noel has "persistently issued claims or made application which are totally without merit". In the present case, Mrs Noel made five applications which were certified as being totally without merit prior to the making of the first extended civil restraint order by Steel J. Since the expiry of that order, Mrs Noel has made two further applications which have been certified as being totally without merit, namely the applications made to HHJ Mackie and Popplewell J. The first issue is whether a court, in accordance with paragraph 3.1 of PD 3C, is able to have regard only to totally without merit claims and applications made after the expiry of the latest extended civil restraint orders (in which case Mrs Noel has made two relevant totally without merit applications) or whether the court is entitled to look at the entirety of the litigation history to determine whether or not the pre-condition for making an extended civil restraint order is satisfied (in which case Mrs Noel has made at least seven such applications).
38. In my judgment, a court is entitled to have regard to all the claims or applications made which were totally without merit in deciding whether it has power to make an extended civil restraint order in accordance with paragraph 3.1 of PD 3C. The court is not limited to considering solely the claims and applications made since the expiry of the latest extended civil restraint order. I reach that conclusion for the following reasons.
39. First, the language of paragraph 3.1 of PD 3C requires a court to consider whether a party "has issued claims or applications which are totally without merit". There is nothing in the language to indicate that a court is only entitled to look at claims issued or applications made within a particular time-frame, for example, in the period since the expiry of the latest extended civil restraint order. There is nothing in the language of paragraph 3.1 which indicates that a court must leave out of account totally claims or applications which were totally without merit and which led to the imposition of an earlier extended civil restraint order. There is nothing in the language to suggest that the making of an extended civil restraint order, in effect, draws a line drawn under conduct occurring prior to that date or that persistence is only to be assessed by reference to conduct occurring after the expiry of the order. Rather, paragraph 3.1 is describing a state of affairs, namely that a party has persistently issued claims or made applications which are totally without merit. It is not prescribing or requiring that only applications made within a particular time scale, or after a particular date, can be considered in assessing persistence.
40. Secondly, an interpretation of PD 3C which permits the court to have regard to the past conduct of a litigant in making totally without merit applications is consistent with the purpose underlying the regime governing extended civil restraint orders. The purpose is to enable the courts to prevent abuses of the court system. That is achieved by providing that a court is to have a discretion to make an extended civil restraint order in cases where a litigant has persistently issued claims or made applications which are totally without merit. The fact that a person has in the past made such applications is relevant to the need for the court to have a discretion, exercisable in appropriate circumstances, to control future abuses. In exercising the discretion, the court will have to assess the risk of the individual making further applications which are totally unmeritorious. Past conduct is relevant to that assessment. Factors such as the number of totally without merit applications that have been made, and the length of time between the expiry of the last extended civil restraint order and the making of a further totally unmeritorious application may be relevant to the assessment of the level of risk of further totally unmeritorious applications being made and whether the discretion to make such an order should be exercised. Past conduct is, therefore, relevant both to the need for a power to control abuses and to the exercise of that power.
41. Indeed, it would, in my judgment, be illogical to leave earlier totally without merit claims and applications out of account. The fact is that the individual has made such applications or claims. The making of such claims or applications has led to the making of an extended civil restraint order. If on the expiry of that order, an individual resumes his or her ways and resumes the process of making applications which are totally without merit, it would be illogical to require the individual to make three or more such applications before the power to make an extended civil restraint order arises. Rather, the fact that the individual has in the past made applications which were totally without merit, and has begun to do so again once the extended civil restraint order expires, demonstrates both the need for the court to have a power to control abuses and may, depending on the circumstances, be highly relevant to whether it is reasonable to anticipate that the person will make such applications in the future. It would be logical, therefore, for the court to have regard to all the totally without merit claims and applications that have been made both in deciding whether the power to make an extended civil restraint order has arisen and in considering how to exercise that discretion.
42. Furthermore, the existing case law recognises that the making of earlier totally without merit applications is relevant to the discretion to make such an order (the second stage of the inquiry): see paragraph 10 of the judgment of Eady J. in Noel v The Society of Lloyd's [2010] EWHC 360 (QB). It would be illogical to say that the fact that the applicant has a history of making totally without merit applications is relevant to the exercise of discretion in deciding whether to make an order be made, but is not relevant to whether the power to make such an order has arisen.
43. Mr Fisher, for Lloyd's, very properly drew attention to the fact that there is, at present, no decided authority on whether totally without merit applications made prior to an earlier extended civil restraint order can be considered for the purposes of deciding if the power to make such an order has arisen. He also drew my attention to paragraph 10 of the judgment of Eady J. in Noel v The Society of Lloyd's [2010] EWHC 360 (QB). That case involved the question of whether an extended civil restraint order should be extended. The test for granting an extension is whether it is appropriate make such an order: see paragraph 3.10 of PD 3C. In the course of deciding whether or not to extend an existing extended civil restraint order, Eady J. observed that it was not the intention that extended civil restraint orders be renewed automatically on expiry. He observed that:

"It seems to me that it would be necessary in such circumstances for Lloyd's to demonstrate why it is now appropriate for a fresh order to be made. There cannot simply be a presumption of continuance. There must be evidence that the criteria are once again fulfilled. Of course, the background is important as background and the degree of persistence, in particular, prior to the original order being made would, no doubt, be a highly relevant factor. So too would the conduct of the relevant person after, the order was made; the extent, for example, to which he/she had sought to get round the order or made unmeritorious applications during its subsistence."

44. In my judgment, that paragraph, and the reference to the need to ensure that "the criteria are once again fulfilled", was not intended to indicate that the court could only have regard to totally without merit applications made after the expiry of the extended civil restraint order for the purpose of determining whether to make a new extended civil restraint order. The court there was dealing with the question of whether to extend the civil restraint order – where the test is whether it is appropriate to grant the extension. The court was not dealing with the question of whether to make a new extended civil restraint order – where the question is whether the individually has persistently made claims or applications which are totally without merit. In particular, the court was not seeking to determine whether the pre-condition for the existence of the power to make such an order could only be satisfied by reference to applications made after the expiry of the previous order. The whole tenor of the judgment is that the court cannot automatically extend an existing extended civil restraint order. It was in that context that the court considered whether the criteria for extending the order existed. As paragraph 23 of the judgment makes clear, the question that arose in the context of that case was whether, on the evidence, there was "good reason to apprehend vexatiousness and, in particular, persistent vexatiousness for the future". The court was not seeking to give an interpretation of paragraph 3.1 of PD 3C.
45. Mr Fisher also, very properly, drew attention to the dictum of Dyson L.J. (as he then was) at paragraph 23 of his judgment in Connah where he observed that the "vice at which the extended civil restraint order is directed is the litigant who issues and makes applications in more than one set of proceedings". In my judgment, Dyson L.J. was not seeking to lay down any rule, and was not seeking to interpret PD 3C, as requiring that applications must be made in more than one set of proceedings before the power to make an extended civil restraint order arose or could appropriately be exercised. Rather he was indicating that, generally, that is the position and, on the facts of that case, there was no indication that the litigant in that case would start other proceedings against the respondent or other parties. For that reason, on the facts of that case, only a limited civil restraint order, rather than an extended civil restraint, was justified. In appropriate circumstances, the requirements of PD 3C may be satisfied, and it may be appropriate to make an extended civil restraint order, where a litigant has persistently made totally without merit applications in one set of proceedings.
46. For all those reasons, I am satisfied that it is appropriate to consider the history of the claims and applications made by Mrs Noel in deciding whether the pre-condition for making an extended civil restraint order is satisfied. That includes having regard to the five applications which were certified as being totally without merit prior to the making of the extended civil restraint order by Steel J. and the two applications made since the expiry of that order which have been certified as totally without merit. Given the number of applications certified by the courts as being totally without merit, the court does have power to make an extended civil restraint order. Mrs Noel is clearly a person who has "persistently" made applications which are totally without merit. The real question is whether it is appropriate to make such an order.

THE EXERCISE OF DISCRETION

47. Assuming that the pre-condition for making an order exist, the court has a discretion, but is not obliged, to make such an order. Paragraph 3.1 of PD 3C provides that the court "may", not must, make an order. In exercising that discretion, the court must have regard to the purpose underlying the making of such civil restraint orders, namely that such orders should be made if, but only if, it is necessary to protect the administration of justice from abuse. That involves an assessment of the risk that the individual litigant will, unless restrained, make further applications or claims which are totally without merit and which will waste the time and resources of the courts, thereby consuming public funds and diverting the courts from dealing with other cases. The making, and the terms, of any order should reflect a proportionate response to the level of risk of future, unmeritorious proceedings. The exercise of discretion will, generally, involve an assessment of the level of risk that the individual poses of making further, unmeritorious applications in future. In considering that issue, as Legatt J. observed at paragraph 69 of his judgment in Nowak v Nursing and Midwifery Council and others [2013] EWHC 1932 (QB):

"The fact that the litigant has repeatedly issued claims or made applications which are totally without merit will itself almost inevitably demonstrate the existence of such a risk. But in considering the extent of the risk it may also be relevant to consider other factors, such as any statements of the litigant's future intentions, other aspects of the litigant's conduct and whether the circumstances which have generated the hopeless claims or applications are continuing or likely to continue."

48. In the present case, in my judgment, it is clear that, unless restrained, Mrs Noel will make applications which are totally without merit. First, the applications made prior to the previous extended civil restraint order related to Mrs Noel's belief that she has been the victim of fraud perpetrated on her in connection with her membership of Lloyds. That perception of injustice, and the belief that she had been the victim of fraud, led to the applications that were dismissed by the Court of Appeal and by Gross J. in 2007. The underlying litigation was compromised by the confidential settlement agreement between Mrs Noel and Lloyds. That agreement (as Jay J. recognised in giving his judgment in the second contempt application) was intended to bring the long-standing dispute to an end and to prevent Mrs Noel from making further allegations.
49. Secondly, Mrs Noel, however, was unprepared to accept the settlement agreement and that agreement had, ultimately, to be enforced by the injunction granted by Cooke J. in 2009. More recently, the focus of Mrs Noel's attention has been on seeking to discharge the injunction granted by Cooke J. That formed the subject matter of the application certified by HHJ Mackie Q.C. as being totally without merit. Furthermore, even though HHJ Mackie Q.C., and indeed, Tugendhat J. in the first contempt proceedings, and Jay J. in the second contempt proceedings, made it clear that the High Court could not hear applications to re-open the injunction granted by Cooke J., Mrs Noel made a further such application before Popplewell J. which, again was certified as being totally without merit.
50. Thirdly, even before Popplewell J., Mrs Noel sought again to obtain an order relating to the underlying dispute between her and Lloyds, notwithstanding the previous dismissal of applications in relation to those matters. Mrs Noel again sought, amongst other things, an order releasing a verification form for examination by a graphologist. As Popplewell J. observed at paragraph 43 of his judgment, that was an application which had been refused by the Court of Appeal and certified as totally without merit in 2007.
51. In my judgment, it is clear that the common thread underlying the repeated applications made by Mrs Noel is an attempt to re-litigate and perpetuate claims relating to her membership of Lloyds. On occasions, those applications are made directly in relation to matters relevant to the underlying dispute. On other occasions, they are made by means of applications intended to re-open the injunction granted to enforce the settlement agreement which was itself intended to settle the underlying claim. On yet other occasions, they are done by applications intended to enable her to continue to make allegations of fraud which the settlement agreement and the injunction were intended to prevent her making. It is clear that, unless restrained, Mrs Noel will continue to make applications that are totally without merit. It is clear that she will persist in making applications even when, as in relation to the injunction granted by Cooke J. , she is repeatedly told by judges in the High Court that that injunction is binding and cannot be re-opened in the High Court. There is an irrational, indeed obsessive, refusal to accept the rulings of the courts and to take "no" for an answer. In my judgment, there is a very high risk indeed that, unless restrained, Mrs Noel will continue to make totally unmeritorious applications relating either to her membership of Lloyds or to the injunction granted by Cooke J. Such applications would inevitably harm the administration of justice. If such applications were permitted, they would inevitably continue to waste the limited time and resources of the courts, consume public funds, and divert the courts away from dealing with cases which may have merit. Given the range of applications made by Mrs Noel, involving, on occasions, applications relating to alleged fraud by Lloyd's and, on other occasions, challenges to the injunction granted to enforce the settlement agreement, it is appropriate to grant an extended civil restraint order, not merely a limited civil restraint order. For those reasons, it is appropriate, just and proportionate to make an extended civil restraint order against Mrs Noel.
52. That conclusion is reinforced, in my judgment, by the following factors. On two occasions, Mrs Noel has been found to be in contempt because she has breached the injunction granted by Cooke J. Those contempts exhibit the same irrational inability to accept that the judgment of Cooke J. is binding and must be observed. As Tugenhadt J. observed in June 2010 when giving judgment in the first contempt application, Mrs Noel had not helped herself by returning on that occasion to the merits of the underlying dispute and denying the validity of the settlement agreement and Mrs Noel had to accept that the order of Cooke J. was binding. Nevertheless, three years later, in November 2013, Mrs Noel was again found guilty of contempt in breaching the injunction and again, before Jay J., sought to re-litigate the historic issues as appears from paragraphs 23 to 26 of the judgment on the committal application. Furthermore, at the hearing before me on 12 March 2015, Mrs Noel submitted a 25 page statement of case, and approximately 500 pages of documents, intended to demonstrate the wrongs that she perceives herself to have suffered over the years. That material, and the oral submissions made at the hearing, demonstrate that Mrs Noel will simply not accept that she cannot continue to make applications which are totally unmeritorious in the legal sense. Such is her sense of grievance that she simply cannot accept that she is unable, as a matter of law, to seek to re-litigate matters that have already been dealt with by the courts, no matter how unsatisfied she is with the outcome.
53. For those reasons, it is, in my judgment, appropriate to exercise the power to make an extended civil restraint order in the present case.

THE TERMS OF THE ORDER

54. The terms of any order made should be proportionate: see the observations of the Court of Appeal in Bhamjee v Forsdick [2004] 1 WLR 88 at paragraph 53(8). First, in my judgment, it is appropriate to make the order for the maximum term of 2 years. That is proportionate and just on the facts of the present case. Secondly, the order should be directed at preventing Mrs Noel from seeking to litigate matters arising out of, or connected with, her membership of Lloyds, the settlement agreement intended to compromise her claims against Lloyds, and the injunction granted to enforce that compromise agreement without first obtaining the permission of a High Court Judge. Thirdly, there should be an appropriately drafted exception permitting Mrs Noel to file and serve an application to set aside any statutory demand served by Lloyd's on Mrs Noel or to make an application in opposition to any bankruptcy petition presented by Lloyd's in respect of monies alleged to be owed by her to Lloyd's. Popplewell J. recognised at paragraph 45 of his judgment that it would not be appropriate to include such matters within the terms of an extended civil restraint order. In my judgment, an extended civil restraint order in the terms proposed will be a just, fair and proportionate order.

CONCLUSION

55. In considering whether a party has persistently issued claims or made claims which are totally without merit, a court is entitled to have regard to all such claims and applications including those made prior to the making of an earlier extended civil restraint order. In the present case, therefore, the court is entitled to have regard to the totally without merit applications made by Mrs Noel prior to the making of an earlier extended civil restraint order as well as those made after the expiry of that order. In the circumstances, given the fact that Mrs Noel had made seven applications which the courts have certified as being totally without merit, Mrs Noel had persistently made such applications and the court has power to make an extended civil restraint order.
56. Secondly, this is an appropriate case for making an extended civil restraint order. There is a very high risk that, unless such an order is made, Mrs Noel will continue to make further totally unmeritorious applications relating to matters connected with her membership of Lloyd's, earlier litigation involving Mrs Noel and Lloyds, the settlement agreement intended to comprise that litigation and matters relating to the injunction granted to enforce that settlement agreement. Mrs Noel has already made a number of such totally without merit applications. She has continued to make applications to the High Court to discharge the injunction granted by Cooke J. after being told by the High Court on a number of occasions that the High Court could not entertain such an application. Furthermore, her overall conduct in terms of the committals for contempt for breaching the injunction granted by Cooke J. to enforce the settlement agreement, and the submissions made at the hearing of the application for an extended civil restraint order, reinforce the conclusion that Mrs Noel will continue to make further, unmeritorious applications unless prevented by court order from doing so. The making of an extended civil restraint order, designed to prevent her from making such applications except with permission of the court, and subject to an appropriately worded exception to take account of possible bankruptcy proceedings, with a duration of 2 years, is an appropriate, proportionate and just order. Only such an order will prevent Mrs Noel from seeking to continue to use the limited time and resources of the courts on litigation which is totally without merit. For that reason, the application is granted and an extended civil restraint order is made.