Practice Directions

PRACTICE DIRECTION 11.3

High Court and District Court

Restricted Application and Restricted Proceedings Orders

(a) Scope of this practice direction

1. This practice direction, which applies to all civil cases in the High Court and the District Court, is made following and on the basis of the decision of the Court of Final Appeal in Ng Yat Chi v Max Share Ltd & Anr (FACV 5 of 2004, 20 January 2005) concerning measures in response to persistent abuse of process by litigants. Reference should be made to that decision in applying this practice direction. A copy of the Order made in that case is annexed hereto as Annex A for guidance.

2. This practice direction deals with:

(a) "Grepe v Loam orders" which prohibit the relevant litigants from making further applications to the court in existing proceedings without the leave of a judge. Such orders should be referred to as "restricted application orders" ("RAOs").

(b) "Extended Grepe v Loam orders" which prohibit the relevant litigants from commencing, without the leave of a judge, fresh proceedings which abuse the court's process by seeking to re-litigate proceedings which have already concluded. Such orders should be referred to as "restricted proceedings orders" ("RPOs").

RAOs and RPOs are together referred to as "restrictive orders".

3. In this practice direction, a litigant who is subject to an RAO or to an RPO is referred to as an "RAO litigant" or an "RPO litigant" as the case may be.

(b) Restricted Application Orders

(i) When made

4. In accordance with Ng Yat Chi, an RAO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the court's process by persistently making unwarranted applications to the court in certain existing proceedings, whether before or after judgment, in circumstances where an RAO would be a proportionate response.

(ii) By whom made

5. An RAO is made by a judge of the Court of First Instance in respect of proceedings in the Court of First Instance. An RAO may also be made by a District Court judge in respect of District Court proceedings. The Court of Appeal may make an RAO not only in respect of applications before itself but also in relation to proceedings before the Court of First Instance and/or the District Court.

(iii) Contents of an RAO

6. Subject to any modifications or additions which may be necessary or desirable, the RAO should provide as follows:

(a) that the RAO litigant is prohibited from making any further application to the court in the proceedings specified, whether before or after judgment, without the leave of a judge (who should be designated in the order itself) being first obtained;

(b) that all applications for leave to issue an application in the specified proceedings ("RAO leave applications") must be made in writing to the designated judge (and not to any other judge or to a master) without giving notice of the application to the intended respondent;

(c) that in the event that no judge designated in the order is available to deal with the RAO leave application, the same should be dealt with by another judge designated by the Chief Judge of the High Court or the Chief District Judge, as the case may be;

(d) that all RAO leave applications and all matters ancillary thereto should be dealt with on the papers and without any oral hearing unless the designated judge otherwise directs;

(e) that where leave to make the substantive application is granted, service of the order giving leave must accompany service of the substantive application in question, which should be heard by a judge and not a master unless the judge otherwise directs;

(f) that if, contrary to the RAO, the RAO litigant seeks to issue an application in the specified proceedings without prior leave of the court, the purported application should forthwith be referred by the Registry to a master for such application to be dismissed in accordance with the RAO; and,

(g) that if, contrary to the RAO, the RAO litigant purports to serve on the respondent any application in the specified proceedings without at the same time serving on the respondent a copy of an order giving leave to issue such application, such application should automatically stand dismissed, so that neither the respondent nor the court would be required to take any steps in response.

(c) Restricted Proceedings Orders

(i) When made

7. In accordance with Ng Yat Chi, an RPO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the court's process by seeking persistently to re-litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the court, in circumstances where an RPO would be a proportionate response.

(ii) By whom made

8. An RPO is made by a judge of the Court of First Instance in respect of proceedings in the Court of First Instance and, if appropriate, proceedings involving the same subject-matter in the District Court. An RPO may also be made by a District Court judge in respect of District Court proceedings. The Court of Appeal may make an RPO in relation to proceedings in the Court of First Instance and/or the District Court.

(iii) Contents of an RPO

9. Subject to any modifications or additions which may be necessary or desirable, the RPO should provide as follows:

(a) that the RPO litigant is prohibited from commencing any fresh proceedings by whatever originating process ("fresh proceedings") concerning any matters involving or relating to or touching upon or leading to the concluded proceedings specified in the RPO without the leave of a judge (who should be designated in the order itself) being first obtained;

(b) that all applications for leave to issue fresh proceedings covered or which may be covered by the RPO ("RPO leave applications") must be made in writing to a designated judge (and not to any other judge or to a master) enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced;

(c) that at least 7 days before filing an RPO leave application, the RPO litigant should notify in writing each intended defendant of his intention to make such application, enclosing a copy of the aforesaid draft document by which the fresh proceedings are intended to be commenced, and if a response is received by the applicant, that he should file a copy thereof with his RPO leave application; and that, in any event, each intended defendant should be entitled, but under no obligation, to place before the court any desired representations regarding any such intended proceedings of which he has notice;

(d) that in the event that no judge designated in the order is available to hear the RPO leave application, the same should be dealt with by another judge designated by the Chief Judge of the High Court or the Chief District Judge, as the case may be; and,

(e) that all RPO leave applications and all matters ancillary thereto should be dealt with on the papers and without any oral hearing unless the designated judge otherwise directs.

(iv) Disposal of RPO leave applications and fresh proceedings begun without leave

10. In disposing of RPO leave applications, the designated judge may give weight to any failure by the RPO litigant to give notice of the intended fresh proceedings to each intended defendant and should in each case decide either:

(a) that the proceedings fall outside the terms of the RPO and direct that leave is not required; or

(b) that the proceedings fall within the class defined by the RPO and refuse leave to commence the fresh proceedings in question; or

(c) that although the proceedings fall within the class defined by the RPO, they should nevertheless be permitted to proceed.

11. If the RPO litigant should issue fresh proceedings covered or which may be covered by the RPO without first seeking the court's leave:

(a) and if such fact should come to the notice of the Registry or to the notice of any master or any judge, the Registry, master or judge in question should refer those proceedings to the designated judge for a decision as to whether they should be permitted to continue or be dismissed;

(b) upon such fresh proceedings coming to the notice of the designated judge, they should either be allowed to continue or be dismissed as set out in paragraph 10 above; and,

(c) whether or not the proceedings are brought to the notice of the designated or some other judge, if a defendant is served with such proceedings unaccompanied by either an order giving leave to proceed or a direction that leave is not required, such defendant should be entitled to make no response pending notification of the court's decision in relation to those proceedings; and, in so far as necessary, time for acknowledging service or for otherwise responding to such proceedings should be deemed extended accordingly.

12. Notice of the judge's decision disposing of the RPO application or giving directions in relation to proceedings commenced without prior leave should be given by the court to the RPO litigant and to each defendant named in the fresh proceedings.

(d) The interpretation of RAOs and RPOs

13. Attention is drawn to paragraph 121 of Ng Yat Chi where, in relation to the interpretation and application of RAOs and RPOs, the Court has stated that regard should be had to the substance of the proposed applications or proceedings and not merely to their form. Accordingly :

(a) Collateral attacks made outside the proceedings covered by an RAO may in substance be merely a device to re-open without justification some matter already determined in those proceedings or otherwise an abuse of the process in respect of those proceedings and, if so, may be treated as applications within those proceedings, caught by the RAO.

(b) Where new proposed proceedings involve new elements or parties not found in the concluded proceedings referred to in the RPO, but are nevertheless in substance merely an unjustified attempt to re-litigate those proceedings, such proposed proceedings may be treated as falling within the RPO.

14. Attention is drawn to paragraph 122 of Ng Yat Chi regarding how the court should deal with questions concerning disqualification of judges.

(e) Appeals in High Court proceedings

(i) Right of appeal against RAO and RPO orders

15. Litigants in the High Court who are subject to a restrictive order have a right of appeal from the Court of First Instance to the Court of Appeal :

(a) against the making of the restrictive order; and,

(b) (subject to any order made by the Court of Appeal restricting future appeals referred to in the next paragraph) against the refusal of an RAO or RPO leave application made pursuant to such restrictive order.

(ii) Power of Court of Appeal to restrict abuse of appellate process

16. Where on the hearing of an appeal the Court of Appeal is satisfied that an RAO litigant or RPO litigant has abused the appellate process by bringing an appeal or appeals, whether against the original restrictive order, or against a subsequent refusal of an RAO or RPO leave application made pursuant to such restrictive order, the Court of Appeal may make an order restricting future appeals and direct:

(a) that the RAO litigant or RPO litigant should thenceforth not be permitted to bring any appeal in respect of any decision of a judge at first instance pursuant to, relating to or in connection with the RAO or RPO unless, at the same time as giving the decision in question, the judge has granted the said litigant leave to appeal to the Court of Appeal; and,

(b) that unless such leave to appeal is given, the judge's decision, including his refusal to grant leave to appeal to the Court of Appeal, should be final.

17. Where an order restricting future appeals has been made by the Court of Appeal:

(a) where the first instance judge dismisses an RAO or RPO leave application, a direction should be given as to whether leave to appeal is granted or refused; and,

(b) leave to appeal may be granted by the judge at first instance if satisfied that an appeal would not be an abuse of the appellate process, for example, where the judge considers that reasonably arguable grounds may exist for challenging on appeal his decision to refuse an RAO or RPO leave application.

(f) Appeals in District Court proceedings

(i) Applications for leave to appeal to the Court of Appeal

18. Litigants in the District Court who are subject to an RAO or an RPO:

(a) require leave to appeal to the Court of Appeal in accordance with O 58 r 2(3) of the District Court Rules against the making of the restrictive order and against refusal of an RAO or RPO leave application made pursuant to such restrictive order; and,

(b) (subject to any order made by the Court of Appeal restricting future applications for leave to appeal referred to in paragraph 23 below) in the event that leave to appeal is refused by the District Court under O 58 r 2(4) or if the Court of Appeal allows an application for leave to appeal to be made directly to itself under O 58 r 2(6), such litigants may apply to the Court of Appeal for leave to appeal against the aforesaid orders.

(ii) Procedure on first application for leave to appeal against restrictive order

19. On the first occasion that an RAO litigant or RPO litigant makes an application to the District Court for leave to appeal to the Court of Appeal against the original restrictive order, such application shall be heard by the District Court inter partes and, where such litigant seeks for the first time to apply to the Court of Appeal for leave to appeal, that application shall be heard by the Court of Appeal and its refusal of leave is final.

(iii) Applications for leave to appeal against restrictive order after leave has already been refused

20. If leave to appeal against the original restrictive order has been finally refused, but the litigant nevertheless purports to apply afresh either to the District Court or to the Court of Appeal for such leave to appeal:

(a) such application shall be treated as one made ex parte in writing without notice to the other side and may be summarily dismissed or otherwise dealt with on the papers without any oral hearing; and,

(b) the respondent to such application shall be entitled to ignore such renewed application for leave to appeal unless and until the court issues directions to the contrary.

(iv) Procedure for first application for leave to appeal against refusal of RAO or RPO leave application

21. On the first occasion that an RAO litigant or RPO litigant makes an application to the District Court for leave to appeal to the Court of Appeal against a refusal of an RAO or RPO leave application, such application for leave to appeal shall be heard by the District Court inter partes and, where such litigant seeks for the first time to apply to the Court of Appeal for leave to appeal, that application shall be heard by the Court of Appeal and its refusal of leave is final.

(v) Procedure on a subsequent application for leave to appeal against refusal of RAO or RPO leave application

22. Where a previous application for leave to appeal to the Court of Appeal against refusal of an RAO or RPO leave application has been unsuccessful before the District Court and, if applicable, also before the Court of Appeal, any subsequent application for such leave to appeal against a subsequent RAO or RPO leave application shall be made to the District Court or, subject to the next paragraph, made to the Court of Appeal, ex parte in writing without giving notice to the other side, and may be summarily dismissed or otherwise dealt with on the papers without a hearing.

(vi) Power of Court of Appeal to restrict abuse of appellate process

23. The Court of Appeal may at any stage, if satisfied that an RAO litigant or an RPO litigant has abused the appellate process by bringing one or more applications before the Court of Appeal for leave to appeal :

(a) against the original restrictive order; and/or

(b) against refusal of an RAO and/or an RPO leave application;

it may make an order directing that any future refusal by the District Court of leave to appeal pursuant to, relating to or in connection with the RAO or RPO in question should be final and that no renewed applications for leave to appeal to the Court of Appeal should be entertained.

(g) Ancillary directions and restrictive orders made on the court's own motion

24. Attention is drawn to paragraphs 102 and 111 of Ng Yat Chi where the Court of Final Appeal noted that this is an area of developing jurisprudence and acknowledged the power of the courts to give ancillary directions aimed at increasing the effectiveness of RAOs and RPOs.

25. Attention is drawn to paragraphs 17 and 111 of Ng Yat Chi where it is noted that it may sometimes be appropriate for the court to act on its own motion in initiating consideration of a restrictive order.

(h) Challenges to decision to give RAO or RPO leave

26. Attention is drawn to paragraph 88 of Ng Yat Chi where it is noted that a decision to grant RPO leave is necessarily without prejudice to any inter partes application that the defendant may wish to mount to strike out the proceedings or to set aside the leave, as appropriate. Where the court has granted RAO or RPO leave and where the respondent or defendant wishes to challenge that decision, the following approach should be adopted:

(a) Any such challenge, in whatever form and on however many grounds, should be dealt with at a single hearing.

(b) Where RAO leave has been granted, it will usually be unnecessary and undesirable for the respondent to issue a separate application to challenge the leave decision. He should simply resist the application at the hearing where he may argue that RAO leave should not have been granted because the application is in fact abusive. That would be a proper and sufficient ground for resisting the substantive application.

(c) Where an RPO litigant serves fresh proceedings supported by an order or direction of the court, this may be because the court has decided (a) that the new proceedings are not caught by the RPO; or (b) that although caught, the litigant ought to be allowed to proceed. The defendant may wish to challenge this by applying (i) to set aside decision (a), arguing that the new proceedings are caught by the RPO; (ii) to set aside the discretionary decision (b) on relevant grounds; or (iii) to strike out the new proceedings under O 18 r 19 or the inherent jurisdiction. All such applications should be dealt with together.

(i) Entry into effect

27. This practice direction comes into effect on 2 April 2005.