There must be finality to litigation (Hurst v Green)
November 30, 2022
Written by Amie Boothman, Commercial barrister at Exchange Chambers.
Hurst v Green and others  EWHC 2895 (Ch)
Restructuring & Insolvency analysis | summary: An applicant, with an extended civil restraint order, sought permission to make several applications which aimed to annul a bankruptcy order made against him and set aside numerous court orders. The court held that the applicant ‘persists in an irrational refusal to take “no” for an answer’ and refused to grant permission, finding that the applications had been made totally without merit. Additionally, the judge went further and considered whether, in the circumstances, it was appropriate to extend the extended civil restraint order by the court’s own motion. The judgment serves as useful authority to practitioners in relation to matters concerning vexatious litigants in civil proceedings, the scope of the court’s power in respect of extended civil restraint orders and helpfully reaffirms the principle that there must be finality to litigation.
What are the practical implications of this case?
While it may potentially be regarded as a somewhat extreme example, this judgment serves as useful authority to practitioners in respect of issues relating to vexatious litigants in civil proceedings, the scope of the court’s power in respect of extended civil restraint orders and the principle that there must be finality to litigation.
What was the background?
Mr Hurst sought permission from the court to make four applications whereby he was, in essence, attempting to annul his bankruptcy and set aside orders (including summary judgment that had been entered against him) to allow him to take to trial his assertions that undue influence had led his mother to enter into a ‘double trust’ arrangement in an attempt to avoid inheritance tax.
Prior to the most recent judgment of 15 November 2022 to which this article focuses, Mr Justice Mellor had dealt with previous attempts made by Mr Hurst to make similar applications. On 28 October 2022, Mellor J made an order refusing Mr Hurst permission to bring the series of the applications referred to above on the basis that (a) Mr Hurst was attempting to undo the whole sequence of judicial decisions made against him based upon a resurrection of the same arguments which had been repeatedly considered by the courts and rejected; (b) he was satisfied that if he were to grant Mr Hurst the permission that he sought then the steps that Mr Hurst contemplated would each amount to an abuse of the process of court; and (c) the application was totally without merit.
On 1 November 2022, Mr Hurst sent a further witness statement requesting that Mellor J review his judgment of 28 October 2022. Thereafter, Mr Hurst sent an additional witness statement dated 2 November 2022, an email to Mellor J’s clerk on 8 November 2022, an email to Chancery Listing on 9 November 2022 and a further email to Mellor J’s clerk on 10 November 2022.
What did the court decide?
The court refused to grant permission to Mr Hurst, stating that ‘notwithstanding Mr Hurst’s remarkable persistence, I am satisfied that he is unable to see anything but an ever-growing conspiracy’ and certified that Mr Hurst’s attempts in his witness statements of 1 and 2 November 2022 to persuade the court that permission ought to be granted constituted an application which was totally without merit.
Consequently, the court went on to consider whether the extended civil restraint order made by Mr Justice Fancourt in May 2021 for two years ought to be extended by the court of its own motion. Relying upon CPR PD 3C, para 3.10 and the case of Ashcroft v Webster  EWHC 887 (Ch), the court concluded that, while rare for the court to do so of its own motion, it was appropriate in the circumstances to extend the duration of the extended civil restraint order for a period of two years so that it would expire on 15 November 2024. Upon concluding the same, Mellor J stated:
‘Mr Hurst has shown no sign of moving on. He persists in an irrational refusal to take “no” for an answer […] He has demonstrated no self-awareness that his quest is, from the point of view of any reasonable litigant, without any merit. Indeed, his latest contentions, set out in his witness statements dated 1st and 2nd November 2022, demonstrate just how out of touch with reality his contentions have become.’
Finally, the court directed that if Mr Hurst makes any further application for permission which is totally without merit, the decision to dismiss the application would be final and there would be no right of appeal unless the judge who refused permission granted permission to appeal.
- Court: High Court of Justice, Business & Property Courts, Insolvency & Companies List
- Judge: Mr Justice Mellor
- Date of judgment: 15 November 2022
This article was originally posted on Lexis Nexis.