In Couper v Irwin Mitchell LLP & Ors [2017] EWHC 3231 (Ch) Mr Justice Arnold refused the claimant’s application for relief from sanctions when the claimant had issued proceedings in breach of a civil restraint order. The claimant, however, was given permission to issue a second set of proceedings.



The claimant had lost at trial in 2013. In 2017 an extended civil restraint order was made against the claimant.  A month after the civil restrain order was made the claimant issued proceedings against his counsel. He had, prior to the restraint order, issued proceedings against his former solicitors.

The solicitors for counsel applied to strike out the action on the grounds that it was in breach of the order.  The claimant asserted that the action was not covered by the order.  Alternatively he sought relief from sanctions.

The judge found that the action was issued in breach of the restraint order. He then considered the application for relief from sanctions.


“Should Mr Couper be granted relief from sanction?

  1. By a draft application notice dated 6 December 2017, Mr Couper sought, if necessary, retrospective permission to issue the claim. Counsel for Mr Couper acknowledged that Practice Direction 3C contained no provision for permission to be sought and obtained retrospectively, but submitted that the Court had power to grant Mr Couper relief from the sanction of striking out pursuant to CPR rule 3.9. Accordingly, I will treat the application as one for relief from sanction under rule 3.9.

  2. Counsel for Lord Thomas submitted that the Court had no power to grant relief from sanction under rule 3.9 in these circumstances because the claim had already been struck out. I do not accept this. It is well established that rule 3.9 enables a court to grant relief from the sanction of striking out where a claim has been struck out for non-compliance with an unless order. I see no reason why it should not also empower the court to grant relief from the sanction of striking out in these circumstances.

    1. In considering whether to grant Mr Couper relief from sanction, the correct approach is that laid down in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3296. The first stage is to consider the seriousness and significance of the applicant’s failure to comply with the ECRO. Counsel for Lord Thomas submitted that it was a serious and significant breach. I agree. The whole point of the ECRO is to enable the Court to control the issuing of claims and the making of applications falling within the ambit of the ECRO. The requirement to obtain permission first is fundamental to achieving that objective. By failing to seek, let alone obtain, prior permission, Mr Couper undermined that objective.

  3. The second stage is to consider why the default occurred. As counsel for Lord Thomas submitted, the simple answer is that Mr Couper failed to make the requisite application. He was acting in person at the time, so he cannot blame anyone else. He says in his witness statement that he believed that he did not need permission to bring, or make applications in, professional negligence proceedings, and that he received advice to that effect from a well-known firm of solicitors acting for him pro bono. As Mr Couper himself relates, however, he nevertheless applied for and obtained permission to make the applications against Irwin Mitchell discussed in paragraphs 11-13 above. Mr Couper does not explain why he did not make a similar application when he was about to issue the claim form against Lord Thomas.

  4. The third stage is to evaluate all the circumstances of the case. Counsel for Mr Couper submitted that Mr Couper had a good case for being granted permission. I accept that for the reasons explained below. I do not consider, however, that that is a sufficient reason to grant Mr Couper relief from sanction having regard to the seriousness and significance of the breach and the lack of any good excuse for it. I recognise that, given that I propose to give Mr Couper permission to issue a fresh claim, declining to grant relief will not put to an end to Mr Couper’s claim against Lord Thomas. It may, however, have limitation consequences. If so, it is right that Mr Couper should suffer those consequences.”



The court then gave the claimant permission to issue a fresh claim. However this could be subject to limitation issues.