Case Nos: HC-2015-003413 and HC-2015-004041

Neutral Citation Number: [2015] EWHC 3308 (Ch)

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
The Rolls Building
7 Rolls Buildings
London EC4A 1NL
Date: 2nd November 2015
Before:
MR. JUSTICE SNOWDEN
--------------------Between:
MRS. SABRINA SHAFIKA MOOSUN,
NESSAH MOOSUN (a minor)
IMRAN MOOSUN (a minor)
- and HSBC BANK PLC T/A FIRST DIRECT

Claimants

Defendant

And between :
MRS. SABRINA SHAFIKA MOOSUN,
NESSAH MOOSUN (a minor)
IMRAN MOOSUN (a minor)
and two dogs
- and HSBC BANK PLC T/A FIRST DIRECT
and SHOOSMITHS LLP

Claimants

Defendants

--------------------Digital Transcript of Marten Walsh Cherer Ltd.,

1st Floor, Quality House, 6-9 Quality Court,
Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 290
Email info@martenwalshcherer.com
Website www.martenwalshcherer.com
--------------------MISS C. WILMOT-SMITH (instructed by Shoosmiths LLP) appeared on behalf
of the Defendants.
The Claimants were neither present nor represented.
---------------------

JudgmentMr. Justice Snowden:

Introduction
1. I have before me a number of applications in two sets of proceedings. The
applications are brought by HSBC Bank plc and, in broad terms, are to strike
out or for the summary determination in the banks favour, claims which have
been brought against it an its solicitors by, amongst others, Mrs. Sabrina
Shafika Moosun. As well as applications to strike out the proceedings the
bank also seeks a general, alternatively, an extended civil restraint order
against Mrs. Moosun.
2. Today the bank has been represented by Miss Wilmot-Smith. Mrs. Moosun
did not appear and neither do any of the other persons and animals named as
claimants in the proceedings. I am, however, satisfied that Mrs. Moosun has
been served and notified of the applications which are before me today.
3. In August of this year I heard an interim application in claim HC-2015-003413
by Mrs. Moosun, who appeared in person, which I dismissed. I indicated
should be relisted to be heard in front of me for a determination as to whether
it was made totally without merit and, if the bank wished to pursue the point,
whether a civil restraint order ought to be made against Mrs. Moosun. I
indicated at the time that those applications should be listed to be heard early
this term. Mrs. Moosun was therefore certainly aware at that stage of the
likelihood that an application for a civil restraint order would be made against
her.
4. The first application by the bank which specifically seeks a civil restraint order
against Mrs. Moosun was dated 18th September 2015 and was served together
with supporting evidence on Mrs. Moosun. The second application dated 19 th
October 2015 was served on Mrs. Moosun by email to the email address
sabmo888@gmail.com. That is the email address Mrs. Moosun has herself
indicated in a witness statement in support of claim HC-2015-004041 and in
other recent proceedings that she issued on 24 September 2015 (which I shall
refer to later in this judgment) should be used to communicate with her.
Further, on 19th October, and in response to the service of that second
application, Mrs. Moosun responded from that email address to the bank
indicating that she was away from the UK and requesting that the legal
proceedings against her should be put on hold pending her attempts to obtain
what she described as external legal assistance.
5. Two other emails from the bank have since been sent to that same email
address. The first was on 19th October 2015 indicating that the hearing of the
applications would be listed for either 2nd, 3rd, or 4th November 2015, and the
second was on Friday of last week, 30th October 2015, notifying Mrs. Moosun
that the matter had actually been listed for hearing this morning and giving her
a copy of the banks skeleton argument which set out in some detail both the
grounds upon which the proceedings are sought to be struck out and dealing
with the making of a civil restraint order against Mrs. Moosun.

6. There has been no response from Mrs. Moosun to those recent emails, but I
am satisfied that in the circumstances Mrs. Moosun has been put on notice, at
the email address which she has indicated should be used for proceedings, of
the hearing of these applications by the bank. Accordingly, I have proceeded
to hear the matter in her absence.
The claims by Mrs. Moosuns children and dogs
7. The first application, as I have indicated, is dated 18 th September 2015 and
seeks an order striking out claim no. HC-2015-003413 which was issued on
14th August 2015. That is a claim which purports to be brought by Mrs.
Moosun and her two infant children, against the bank.
8. The first point taken by Miss Wilmot-Smith for the bank is that Mrs. Moosuns
children are named as claimants in the proceedings but they are minors. No
litigation friend has been appointed on their behalf and no order has been
made permitting them to bring proceedings. Therefore, submits Miss WilmotSmith, pursuant to CPR 21.2, the actions brought in the names of the children
are of no effect and should be dismissed. I agree and intend to strike out the
claims by the two children.
9. The second application is dated 19th October 2015 and seeks to strike out the
claim in action HC-2015-004041 which was issued on 21 September 2015.
That claim is sought to be brought by Mrs. Moosun, her two infant children,
and two dogs who are identified as Goldie, aged 18 months, and Diamond,
aged 2 years. Again, Miss Wilmot-Smith takes the point that the claims by the
children should be struck out as they are brought in circumstances where no
litigation friend has been appointed on behalf of the children and no order has
been made permitting the children to bring proceedings. That is right, and for
the same reasons as in relation to the first claim, I shall strike out the claims by
the children.
10. Miss Wilmot-Smith also makes the obvious point that dogs are not capable of
bringing legal proceedings. Among other things, CPR Part 2.3(1) defines
claimant as a person who makes a claim, and a dog is not a person. I also
cannot see how a dog could give instructions for a claim to be brought on its
behalf or be liable for any orders made against it. There are a whole host of
other reasons why proceedings by dogs must be void, and accordingly I am
satisfied that in so far as the claim purports to be made on behalf of the two
dogs it should also be struck out.
The claims by Mrs. Moosun
11. The history of Mrs. Moosuns proceedings against the bank is long and I shall
endeavour, as best I can, to summarise it.
12. Mrs. Moosun was the owner of a property at Jasmine Cottage, Wood Lane,
Iver, which she purchased in February 2008 for 385,000 with the assistance
of a mortgage from the bank. In September 2008, the South Bucks District
Council issued an enforcement notice against Mrs. Moosun because of

unauthorised developments at the property. There had been an unauthorised

extension to the cottage.
13. Mrs. Moosun launched an appeal to the planning inspectorate against the
enforcement notice and that appeal was rejected by the planning inspector in
July 2009. Mrs. Moosun subsequently sought judicial review of the councils
behaviour in relation to the enforcement notice but that judicial review was
dismissed by Collins J on 6th February 2013, first on the basis that the
application for judicial review was out of time and, secondly, that there was in
any event no merit in the claim.
14. Returning to events in 2009, the consequence of the enforcement notice being
issued and the rejection of the appeal against it was that the bank took action
in 2009 pursuant to its rights under the mortgage. In brief terms, the mortgage
was an offset mortgage and one of its provisions permitted the bank to take
steps in the event of breach of any of the terms of the mortgage, or a threat to
the banks security, to restrict further drawings on the offset mortgage and to
apply any positive balance on any account against the amounts owing. The
bank took such steps in 2009.
15. Mrs. Moosun disputed the banks ability to act as it had under the terms of the
mortgage and complained to the Financial Services Ombudsman in 2010.
That complaint was rejected in August 2010.
16. The consequence of the banks action was that Mrs. Moosun fell into arrears in
relation to repayment of the loan and the bank took possession proceedings in
the Uxbridge County Court against Mrs. Moosun. The proceedings were
considered by District Judge Jones at a hearing which Mrs. Moosun did not
attend on 23rd August 2011. The District Judge made an order for possession.
17. Mrs. Moosun immediately applied to set aside that order for possession and
her attempt to do so was considered by District Judge Lenon in the Uxbridge
County Court at a hearing on 8th June 2012. Mrs. Moosun was represented at
that hearing by counsel. I have seen a note of the judgment of the District
Judge, who went through the background facts and also considered expressly
the complaint that Mrs. Moosun made that the bank was not entitled, as she
put it, to freeze her account. The District Judge considered the evidence and,
in particular, the provisions of the mortgage, and rejected Mrs. Moosuns
argument that the bank had not been entitled to act as it did under the terms of
the mortgage. In particular, the District Judge held that under clause 29 of the
mortgage, if the mortgage became enforceable, the bank could without prior
notice transfer any credit balance in or towards discharge of any debit balance
on any of Mrs. Moosuns accounts. He further held that that power had been
properly exercised by the bank and that Mrs. Moosuns complaint to the
contrary was unfounded.
18. Mrs. Moosun subsequently sought to appeal that order. I have seen the full
skeleton arguments that were subsequently put before the county court judge,
HHJ Bailey, who heard the application for permission to appeal on 28 th
November 2012. Those skeleton arguments, both from Mrs. Moosun and

from the banks counsel, were extensive. For her part, Mrs. Moosun raised a
considerable number of points concerning the actions by the bank, both as a
matter of contract and in relation to an alleged denial of her rights under the
European Human Rights Convention, among other things by reason of the fact
that the original order made by District Judge Banks had been made in her
absence. She also alleged that what was happening to her involved satanic
freemasons.
19. HHJ Bailey gave a reasoned judgment going into the background of the
history relating to the property, the planning consents (or lack thereof), and the
validity of the decision of the bank as to whether to exercise its powers under
the mortgage. Having done so, HHJ Bailey refused permission to appeal.
20. Not deterred, Mrs. Moosun then issued proceedings for judicial review on 5 th
February 2013 in the Administrative Court of the High Court claiming that the
HHJ Bailey had not given any reasons as to why he had dismissed her
application for permission to appeal and claiming that the order that had been
made was in error as a matter of law. In support of her application for judicial
review, Mrs. Moosun again made a substantial complaint about the activities
of the bank in freezing her accounts without prior notice and not adhering to
the terms and conditions in any legal manner. She also asserted (again) that
her rights under the ECHR had been infringed, that her property was worth
substantially more than the amount of the debt owed to the bank, and that
there was a conspiracy against her involving freemasons.
21. That application for judicial review of the county court judgment was finally
dismissed by Mr. Justice Green, sitting in the Administrative Court, by an
order of 16th April 2014. Green J recorded that, contrary to the application
made by Mrs. Moosun, the judge had in fact delivered a fully reasoned
judgment after full argument and he recorded that there was nothing which
came close to showing an arguable case for granting permission. He declared
that Mrs. Moosuns application was totally without merit.
22. Returning to events in the county court in 2013, after the refusal of permission
to appeal by HHJ Bailey, the bank obtained a warrant for possession in
October 2013 and a date was set for Mrs. Moosun to be evicted on 3 rd
December 2013.
23. On 28th November 2013 Mrs. Moosun made an application to suspend the
warrant for possession and to quash previous orders. That application was
heard on 3rd December 2013 by District Judge Wood, who dismissed the
application and refused permission to appeal. A further application to suspend
the warrant for possession and to quash previous orders was then made on 23 rd
December 2013. That was dismissed by District Judge Banks on 6th January
2014, and the District Judge recorded that the application was wholly without
merit.
24. On 8th January 2014, Mrs. Moosun applied for permission to appeal the order
of District Judge Wood of 3rd December 2013. That appeal was struck out by
Mrs. Justice Rose on 16th April 2014.

25. On 10th January 2014, Mrs. Moosun applied again to suspend the warrant of
possession. That application was made to the High Court and it was heard in
the Interim Applications Court on 14th January 2014. On that occasion, Mr.
Justice David Richards held that he did not have jurisdiction to deal with the
application on the basis that any appeal against a possession order should lie to
a circuit judge.
26. Following the refusal of permission to bring judicial review proceedings by
Green J on 16th April 2014, Mrs. Moosun still refused to give up possession of
the property and renewed her application for permission to apply for judicial
review. She again claimed (among other things) that there had not been a fair
trial in breach of the ECHR because the hearing had been held in her absence.
That renewed application was refused by an order of Mr. Justice Warby on 26th
June 2014, at a hearing which Mrs. Moosun did not attend. Warby J also
recorded pursuant to CPR 23.12 that the application was totally without merit.
27. On 27th May 2014, Mrs. Moosun again applied to the High Court to stay the
order for possession and for permission to appeal against those orders. On 28th
July 2014 Mr. Justice Barling refused those applications on paper, having first
called for the entire file from the Uxbridge County Court. Barling J held that
Mrs. Moosuns claim that she had not had a fair trial on 23 August 2011 had
no real prospect of success given that there had been two further substantive
hearings before District Judge Lenon (where she was represented by counsel)
and HHJ Bailey. Barling J also held that there were no other grounds of
appeal which would have any real prospects of success. He declared the
proposed appeal to be wholly without merit.
28. On 21st October 2014, in the Uxbridge County Court, District Judge Banks
made a limited civil restraint order against Mrs. Moosun (who did not appear)
preventing her from making any application in the claim for possession
without the prior permission of the court.
29. On 27th October 2014, Mrs. Moosun applied to the High Court to set aside the
limited civil restraint order. That application was heard and refused by Mr.
Justice Mann in the Interim Applications Court on 4 th December 2014. Mann
J recorded that the application should be regarded as being totally without
merit.
30. On 8th January 2015, Mrs. Moosun again applied to the High Court to set aside
the order of Mann J and to suspend the execution of the warrant of possession,
the eviction date having been reset for 12 th January 2015. That application
was not listed to be heard until 15th January 2015, but in the meantime, Mrs.
Moosun made two further applications to suspend the warrants of possession
in the Uxbridge County Court. She also applied to discharge the limited civil
restraint order against her. Those applications were heard on 12 th January
2015 by District Judge Banks. Those applications were refused and recorded
as having been wholly without merit.

31. Later on 12th January 2015 the bank finally obtained possession of the
property.
32. On 15th January 2015 Mr. Justice Birss heard Mrs. Moosuns application of 8
January 2015. Mrs. Moosun was represented by counsel provided by the
CLIPs scheme. The application was dismissed and Birss J recorded that the
application should be regarded as totally without merit. At that stage, Birss J
declined to make an extended civil restraint order against Mrs. Moosun.
33. On 4th February 2015, Mrs. Moosun applied for an injunction to the Central
London County Court, without notice to the bank, to prevent the bank from
selling the property. That application was heard on 10th February 2015 by
HHJ Taylor. HHJ Taylor found that Mrs. Moosun had failed to comply with
the terms of the limited civil restraint order in making the applications without
the permission of the designated District Judge and without notice to the bank.
HHJ Taylor dismissed the applications, refused permission to appeal and again
recorded that the applications were totally without merit.
34. The bank then proceeded, as mortgagee in possession, to arrange for an
auction of the property. That auction was scheduled to take place on 6th
August 2015. On 5th August 2015, Mrs. Moosun applied to the Chancery
Division for an order to set aside the possession order that had been granted on
23rd August 2011 and to suspend the auction that was scheduled to take place
the next day. That application was heard and refused on 6 th August by Mr.
Justice Mann. In essence, Mann J held that Mrs. Moosun had not submitted
any evidence to support her case that she was able to repay the bank and it was
too late in the day to try and stop the auction of her house. The judge
described Mrs. Moosun as attempting to have another bite at the cherry.
35. Mrs. Moosun subsequently made a further application after the auction had
taken place on 10th August 2015 to stay the sale of the property pursuant to the
contract that had been entered into following the auction. That application
came before me in the Interim Applications Court on 20th August 2015 and in a
judgment given on that day, [2015] EWHC 2775 (Ch), I refused the
application for an injunction.
36. In essence, I took the view that there was nothing inherently suspicious about
the price that had been obtained at auction, 285,000, having regard to other
offers which had been made round about that time. I also rejected the
suggestion made by Mrs. Moosun that the value of the property was
substantially more than the price obtained at auction. Mrs. Moosun had
sought to rely upon an estate agents recommendation from 2012 that the
property should be put onto the market at between 950,000 and 1.3m.
However, it seemed to me that that advice obviously failed to recognise that
the property was not as described, a five-bedroomed house, but was in reality
a property against which there was an extant enforcement notice which
required a substantial part of the property to be demolished, no doubt at
considerable expense. I also rejected Mrs. Moosuns application because, as
had been the case before Mann J a couple of weeks earlier, Mrs. Moosun

signally failed to produce any evidence of her ability to pay the bank what it
was owed.
37. On 20th August 2015 I adjourned the question of whether that application
before me was totally without merit. I also adjourned the consideration of the
question of whether, if I took the view that the application was totally without
merit, an extended civil restraint order ought to be made against Mrs. Moosun,
as had been suggested by the bank in its submissions. I did so in order to give
Mrs. Moosun (who had become agitated at the hearing on 20 th August 2015)
time to prepare any submissions or evidence in response.
38. Having reviewed the application made by Mrs. Moosun on 20 th August 2015, I
can say now that I take the view that the application was totally without merit.
In essence, it was simply an attempt to rerun in front of me the arguments
which had failed in front of Mann J, and as I indicated in my judgment, I
thought there was nothing in them at all.
39. Events did not stand still after 20 th August 2015, because on 2nd September
Mrs. Moosun issued proceedings which she appears to have drafted on 24 th
August 2015, only a very few days after I had rejected her application for a
stay of the sale of the property pursuant to the contract that had been entered
into at auction. The new proceedings purported to be in the name of Mrs.
Moosun and her two children, and were against a Mr. Healey and a Mr. Miller
who were the asset managers and the auctioneers who were appointed to
conduct the sale of Jasmine Cottage. The application notice attached a
statement from Mrs. Moosun that accused the defendants of participation in
what she described as corrupt and illegal dealing with her home. Miss
Wilmot-Smith told me, on instructions, that she understood from counsel who
had appeared for the defendants, that Mrs. Moosuns application was
dismissed by the court and recorded as having been totally without merit.
40. Again, matters did not stop there. On 21 st September 2015, Mrs. Moosun
issued two further sets of proceedings. The first, HC-2015-004041, were the
proceedings against the bank and its solicitors, Shoosmiths, issued on behalf
of Mrs. Moosun, her children, and her dogs to which I have already referred.
41. The second set of proceedings, HC-2015-004042, were issued on behalf of
Mrs. Moosun and her children against Ranson Houghton (a firm), who I
understand to have been acting for the buyers of the property at auction. The
brief details of that claim are as follows:
It is the claimants submission that the defendants
unprofessional misconduct and colluding with the fraudulent,
corrupted and illegal dealing with the claimants family home.
The defendants deliberately caused financial loss, stress, and
anxieties of the claimants.
The value of the claim was put at 1.2m. I have no further information as to
what has happened to that claim.
The Application to strike out the claims by Mrs. Moosun

42. Dealing with the two claims which the bank seeks to strike out in sequence,
the first claim (HC-2015-003413) is described as follows in the claim form:
It is the claimants submission that the defendant unlawfully took
custody of their initial family home, namely, Jasmine Cottage, Wood
Lane, Iver, and engaged to act in fraudulent manner to cause financial
losses to the claimants, being Mrs. Moosun and her two young children
who are also victims of this issue. Due to these issues Mrs. Moosun
and her two children are making a claim for breach of contract due to
the defective performance of the agreement that I had with the
defendant.
The value of the claim is put at 3,570,000: no particulars are provided as to
how that sum is arrived at.
43. The claim form is not supported by particulars of claim. It does, however,
attach a statement of Mrs. Moosun, which contains a number of complaints in
relation to the banks actions including in particular the freezing of her
account. It also makes various allegations against District Judge Banks, and
alleges a breach of Mrs. Moosuns rights under the ECHR.
44. Miss Wilmot-Smith makes a number of points about this claim. She submits
that the main point is that the claim for breach of contract due to defective
performance of the agreement between Mrs. Moosun and the bank is a matter
that has been litigated on a number of occasions in the possession proceedings
in the county court and thereafter sought to be litigated by way of judicial
review. As I have indicated, on each occasion the claim has been rejected.
Miss Wilmot-Smith also submits that to the extent that they are
comprehensible, the other allegations made in relation to the earlier hearings
and under the ECHR have also been repeatedly ventilated in subsequent
applications, appeals and in the judicial review proceedings. She again
submits that all such challenges have been rejected.
45. It is trite law that it is an abuse of process to seek to re-litigate claims which
have already been the subject of a final and binding determination between the
parties on an earlier occasion: see e.g. Virgin Atlantic Airways v Zodiac Seats
[2014] AC 160.
46. It seems to me, first, that Mrs. Moosuns attempt to re-litigate questions of
whether the bank was acting in accordance with its mortgage contract with
Mrs. Moosun when it acted to combine accounts and then took possession
proceedings against Mrs. Moosun has already been finally decided on a
number of occasions. It is an abuse of process for her to seek to re-litigate that
matter. I also consider that the explanations that have been given by a number
of courts of the banks entitlement provide ample justification for the actions
that the bank took at the relevant time.
47. The same can also be said of the other allegations relating to the various
hearings and as to the alleged breaches of Mrs. Moosuns rights under the

ECHR. Again, it seems to me, that it is an abuse of process for those

allegations to be raised again in these proceedings.
48. For those reasons I propose to strike out the first claim which Mrs. Moosun
has brought, and in so doing I shall record that in my view that claim is totally
without merit.
49. The second and more recent claim (HC-2015-004041) is the claim which, as I
indicated, has been brought against the bank and its solicitors by Mrs.
Moosun, her children and her dogs. The claim form reads as follows:
Words would not be able to describe the losses and suffering
to me and my children caused by the defendant, HSBC/First
Direct and Shoosmiths, discrimination contrary to the Equality
Act 2010, our right to respect for our private and family life
and our home so being interfered with disproportionately
contrary to Article 8 of the European Convention on Human
Rights.
The claim is said to have a value of 5.5m, but no particulars are provided.
50. Quite apart from the obvious lack of any details to support the claims, Miss
Wilmot-Smith points out that a claim under the Equality Act should be
brought in the county court pursuant to section 114 of the Equality Act 2010
and there is no indication in that statute that the claim is properly brought in
the Chancery Division. I agree. Moreover, there is nothing in the claim which
indicates the basis upon which Mrs. Moosun suggests that any protected
characteristics of hers are said to have been the subject of discrimination,
harassment, or victimisation, by the bank. Nor does Mrs. Moosun even
attempt to substantiate the figure of 5.5m.
51. The only document provided in support of the claim is a statement of Mrs.
Moosun, dated 11th August 2015, which is attached to the claim form. It
contains the same paragraphs as the statement exhibited to the first claim to
which I have referred (HC-2015-003413), but with the addition of two
paragraphs. The first is a long paragraph complaining about her treatment and
alleging that Mrs. Moosun has:
hardly been given a right of audience under Article 6 and
there is a blatant disregard of Article 8 and the children
legislation of 1989. The welfare of her family is totally
ignored.
52. Quite apart from the point that this is a repetition of the ECHR points which
have already been made and rejected, it seems to me that there is no basis
whatsoever for a suggestion that any of the judges who have heard the matters
have either denied Mrs. Moosun a fair hearing or have in any way
discriminated against her, or have infringed her human rights. Mrs. Moosun
has on occasions been represented and was represented in the early
proceedings in the county court and I have already indicated that significant
submissions, both written and oral, have been made by her and on her behalf
but rejected by the courts.

53. The second additional paragraph states,

We must add that due to Mrs. Moosuns involvement in her
political career being a critic to the Government, judiciary,
police, and other organisations in her last electoral campaign,
all her cases are mainly politically motivated to victimise her
and her family.
There are, however, no material facts set out in support of any of those further
allegations.
54. It therefore seems to me, again, that there is nothing in this action by Mrs.
Moosun which adds to the matters which have previously been litigated and
decided against her. It is an abuse of process for her to seek to re-litigate these
matters. I propose to strike out this claim and to record that that it is totally
without merit.
A General or Extended Civil Restraint Order
55. I finally turn to the question of whether to make a civil restraint order against
Mrs. Moosun. The application before me seeks either a general civil restraint
order or an extended civil restraint order. Having decided to strike out Mrs.
Moosuns statements of case on the basis that they were wholly without merit,
I am also obliged, pursuant to CPR 3.4 sub-rule (6)(b), to consider whether it
is appropriate to make a civil restraint order against Mrs. Moosun.
56. Civil restraint orders are dealt with under Practice Direction 3C which
supplements CPR 3.11. An extended civil restraint order may be made where
a party has persistently issued claims or made applications which are totally
without merit. It prohibits the person subject to the order from issuing claims
or making applications in specified courts concerning any matter involving, or
relating to, or touching upon, or leading to the proceedings in which the order
is made without first obtaining the permission of a nominated judge.
57. A general civil restraint order is wider and is capable of being made where the
party against whom the order is made persists in issuing claims or making
applications which are totally without merit in circumstances where an
extended civil restraint order would not be sufficient or appropriate.
58. The guidance that has been given by the courts in relation to such orders can
be found in two decisions of the Court of Appeal, Bhamjee v Forsdick [2004]
1WLR 88 and Mahajan and Department for Constitutional Affairs [2004]
EWCA Civ 946.
59. In Bhamjee, after having described the common law jurisdiction to restrain
vexatious and abusive litigation, the Court of Appeal referred to extended civil
restraint orders in paragraph 41, stating:
because the nuisance represented by vexatious litigants is
steadily increasing we consider the courts should now be more

willing to make extended civil restraint orders of the type

approved by this court in Ebert and Venvil [2000] Ch. 484.
60. Then at paragraph 42, the Court of Appeal added:
An extended civil restraint order will identify the jurisdiction in
written applications for the requisite permission should be made.
It should be made for a period not exceeding two years. By the
time the order comes to be made, the litigant for whom the
further restraint has been adjudged necessary will have exhibited
not only the hallmarks of vexatiousness but also the hallmarks of
persistent vexatiousness. We do not include the word habitual
among the necessary criteria for an extended civil restraint order
but there has to be an element of persistence in the irrational
refusal to take no for an answer before an order of this type can
be made. The duration of the order may have to be extended if
this is considered appropriate but it should not be extended for a
greater period than two years on any given occasion.
61. The reference to vexatiousness in that paragraph was to a dictum of Lord
Bingham in Attorney General v Barker [2001] FLR 759, at paragraph 19
where Lord Bingham said that vexatious was a familiar term in legal
parlance, and added that,
the hallmark of a vexatious proceeding is in my judgment that it
has little or no basis in law (or at least no discernible basis); that
whatever the intention of the proceeding may be, its effect is to
subject the defendant to inconvenience, harassment and expense
out of all proportion to any gain likely to accrue to the claimant;
and that it involves an abuse of the process of the court, meaning
by that a use of the court process for a purpose or in a way which
is significantly different from the ordinary proper use of the court
process.
62. In Attorney General v Barker, Lord Bingham went on to give an explanation
of the words habitually and persistently which appeared in section 42 of
what was then the Supreme Court Act of 1981, as follows:
The hallmark usually is that the plaintiff sues the same party
repeatedly in reliance on essentially the same cause of action,
perhaps with minor variations after it has been ruled upon,
thereby imposing on defendants the burden of resisting claim
after claim; that the claimant relies on essentially the same cause
of action perhaps with minor variations after it has been ruled
upon in actions against successive parties who if they were to be
sued at all should have been joined in the same action; that the
claimant automatically challenges every adverse decision on
appeal; and that the claimant refuses to take any notice of or give
any effect to orders of the court. The essential advice of habitual
and persistent litigation is keeping on and on litigating when
earlier litigation has been unsuccessful and when on any rational
and objective assessment the time has come to stop.

63. Finally, in Bhamjee v Forsdick the Court of Appeal dealt in paragraphs 43 and
44 with the general civil restraint order as follows:
The courts experience now shows that an even wider form of
order may be necessary for a particularly rare type of litigant.
The civil restraint order and an extended civil restraint order can
only restrain the litigant in the context of the litigation he is
currently conducting and other litigation to like effect. In
paragraph 28 above, we have cited the passage in Lord Woolfs
judgment in Ebert v Venvil in which he explains the basis on
which a judge may make an order with an effect wider than the
particular proceedings in which he is engaged.
It is now clear that it may be necessary because a litigants
vexatious activities are proving to be such a drain on the
resources of a court, for a judge of the court to make an order
restraining him from commencing any action or making any
application in that court without the prior permission of the
court.
The reference to Lord Woolfs judgment in Ebert v Venvil was a reference to
the ability of the court to extend its power to restrain proceedings in front of
itself to restraining other proceedings that are unidentified but anticipated and
would cause serious loss to the defendants to those proceedings.
64. The Court of Appeal went on to make the point that a general civil restraint
order may be needed so as to avoid any argument as to whether a particular
fresh process is or is not caught by an extended civil restraint order in a case in
which there is concern that the litigant would seek to formulate proceedings in
such a way as to raise an argument that he did not need leave.
65. Taking into account those authorities and guidance, it seems to me, first of all,
that this is a case in which it is necessary for the court to make a civil restraint
order against Mrs. Moosun. The long and tortured history of the litigation
which Mrs. Moosun has instituted to challenge the possession proceedings
taken by the bank by every means legitimately and illegitimately available to
her, indicates very forcibly that Mrs. Moosun is a litigant who is simply not
prepared to take no for an answer.
66. Mrs. Moosun has made repeated applications and issued proceedings in her
own name (and in the names of her children and her pets) against the bank, its
advisers, and a number of other people who have become involved in the
possession proceedings and the auction leading to the sale of her house. As I
have indicated, a considerable number of those claims and applications have
been held to be totally without merit. Some have also been issued in breach of
a previous limited civil restraint order made against her in the county court. I
consider that it is right to characterise her conduct as persistently issuing
claims or making application which are totally without merit.
67. The history that I have recited also indicates that Mrs. Moosun is in the habit
of bringing proceedings in different forms and in different tribunals. Many of

her claims and applications do not make clear the basis of her complaints and
make unparticularised allegations, including allegations of fraud and
conspiracy, against a wide range of people. She also appears to be labouring
under a considerable misapprehension as to the appropriate scope of relevant
legislation and of the proper procedures of litigation as indicated by the
involvement of her children and her pets in proceedings.
68. In these circumstances it seems to me that Mrs. Moosun is one of those very
rare litigants for whom an extended civil restraint order would not be
sufficient or appropriate, and that it is necessary to make a general civil
restraint order against her. I think it would be impossible to construct an
extended civil restraint order in a form which would be clearly capable of
catching whatever new proceedings that Mrs. Moosun may dream up. The
very fact that she is prepared to make unparticularised and wide-ranging
allegations of a conspiracy against her by the judges who have been involved
in dealing with her and the professionals involved in the sale of her house
indicates to me that, unless a restraint is made in general form, it is likely that
she will try to find ways of evading the restraint. I also do not think that she
should be given any encouragement to evade the restrictions of an extended
civil restraint order in the way that she ignored or evaded the limited civil
restraint order previously made against her in the County Court.
69. I do not regard the making of a general civil restraint order against Mrs.
Moosun at this juncture as being in any way draconian or disproportionate;
indeed, the long history of litigation that I have outlined indicates that it is a
necessary and appropriate step to take to stop the drain on the resources of the
courts caused by Mrs. Moosun. There is no evidence before me that Mrs.
Moosun has any other genuine claims that she wishes to bring or pursue.
70. In those circumstances, it seems to me that it is appropriate for there to be a
general civil restraint order so that Mrs. Moosun will be obliged to apply to a
judge on paper for permission to bring any form of proceedings in the High
Court or any County Court. I propose to make a general civil restraint order
against Mrs. Moosun for the period of two years and I will hear counsel on
any particular features that need to be addressed in drafting the order.