By Celia Kitzinger, 30^th March 2026

A Court of Protection judge has refused an application from South Tyneside Council to make a Civil Restraint Order (CRO) against the father of a young autistic man living in supported accommodation.

I observed the hearing (COP 14075351) before Mr Justice Poole sitting in person in the Royal Courts of Justice on 24th March 2026. 

It’s been a long-running case concerning P’s litigation capacity, and his capacity and best interests in relation to residence, care, contact, and use of the internet and social media.

Earlier proceedings in the Family Court go back to 2017, with disputes about communication with the school, care orders, and contact arrangements.  Injunctions were made against the father and his appeals against them were dismissed as “totally without merit”.  Eventually, an Extended Civil Restraint Order was issued against him in January 2020. He also received prison sentences – first suspended and then immediate – for stalking, breach of a non-molestation order, and harassment. A second Extended Civil Restraint Order was made by Lord Justice Peter Jackson sitting in the Court of Appeal in February 2023 (and expired in November 2025).

The father’s most recent “totally without merit” appeals are from October 2024 and November 2025, both in the Court of Protection, with several other applications dismissed (without being so certified) between those two dates.   This included dismissal of the father’s application for permission to appeal against a finding from a contested six-day hearing that P lacks capacity to litigate and to make decisions about care and residence, contact, and the use of social media.

According to the local authority, represented by Brett Davies of Spire Barristers^[i], P’s father does not accept that P has a disturbance in the functioning of the mind or brain (Autistic Spectrum Disorder and learning disability) or that he lacks capacity to make his own decisions.  He “does not accept the power or duty of [the local authority] to provide [P] with care and support”.  And there is “no willingness or effort on [the father’s] part to engage with the parties, outside of court, in cooperation for [P]’s benefit”. Instead of corresponding with the other parties when there is uncertainty or dispute, and trying to resolve the matter, there is “an immediate recourse to making an application within proceedings”.   According to the local authority, this “translates into vexatious litigation (for the parties and the court), and consumes an entirely unreasonable and disproportionate share of public resources”.

And so South Tyneside Council has applied for a Civil Restraint Order, the aim of which (as spelled out in Ludlam, a key authority on CROs) is to prevent abuse of the court process:

_{No litigant has the substantive right to trouble the court with litigation which represents an abuse of the court’s process […] The mischief of such unmeritorious litigation is not merely the unnecessary troubling of the opponents (frequently in circumstances where the opponents cannot enforce costs orders against the party bringing the unmeritorious litigation). Over and above this, such unmeritorious litigation drains the resources of the court itself, which of necessity are not infinite. Hence, limited resources which should be devoted to those who have genuine grievances are squandered on those who do not […] It is no defence for the party bringing the unmeritorious litigation to say that he genuinely, and honestly, believed that he had a viable grievance […] [I]n many, if not most, cases the litigant in question has been seriously hurt by something which has happened in the past. The litigant feels that he was unfairly treated and cannot understand it when the courts are unwilling to give him the redress he seeks. To my mind the only relevance of an honest belief in the validity of the unmeritorious claims which are being brought is that it may go to increase the “threat level” of future unmeritorious litigation. The question to be asked, quite simply, is will the litigant, now, continue with an irrational refusal to take “no” for an answer. (In the Matter of John Michael Ludlam Between: Courtman v Ludlam & Anor [2009] EWHC 2067 (Ch))}

Basically, a CRO serves a gatekeeping function by filtering out unmeritorious applications. A CRO in this case would mean that unless P’s father first got permission to make an application (from the named judge who would be specified in the CRO), any application would automatically be struck out or dismissed without the judge having to make any further order and without the need for the other party to respond to it.

This would save the court time and money, and it would mean that the local authority would be spared the time and expense of frequent litigation against them (and could devote themselves to those with “genuine grievances”).

The rules on Civil Restraint Orders are set out in Practice Direction 22A, which came into effect on 6th April 2017 with the 2017 amendments to the Court of Protection Rules. An explanatory memorandum explained that the intention was to “give the court greater powers, following the model of the Civil Procedure Rules providing for civil restraint orders, to deal with applications which are without merit and allow the court, for instance, to restrain litigants from submitting repeat applications” There are three types of CRO: limited, extended and general.   

• A “limited” CRO is limited to the particular proceedings in which it is made.  (§11(a) PD22A)
• An “extended” CRO would apply to applications in the Court of Protection “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made” (§13(a) PD22A).  It can be for a maximum of two years.
• A “general” CRO would cover any application in the Court of Protection (for a maximum of two years) (§21-29 PD22A). It can be “apt to cover a situation where [a litigant] adopts a scattergun approach to litigation on a number of different grievances without necessarily exhibiting such an obsessive approach to a single topic that an extended civil restraint order can necessarily be made against him/her” (Kumar at [60])

South Tyneside Council applied for an extended CRO (often referred to as “ECRO”).  They applied for an ECRO in preference to a “limited” CRO because these particular proceedings are likely to end very soon (and a “limited” CRO would end with them): the “final” hearing in the current proceedings is provisionally listed for the end of April.

The upcoming proceedings reflect an interesting development in this case. Re-assessment for the standard Deprivation of Liberty authorisation found that P does not fulfil the ‘capacity’ requirement: in other words he does not lack capacity to consent to his residence and care arrangements (and in fact he does consent to them). This raised questions both about the accuracy of that assessment and about about whether in fact P does have capacity to make (other) decisions for himself, and an independent expert was appointed by the court, consultant psychiatrist Dr Lisa Rippon. She has now assessed P as having capacity to make his own decisions in all relevant areas (which has been his father’s position all along). A pre-hearing review is listed for 8^th April 2026: if the judge accepts the expert opinion, the Court of Protection will have no further jurisdiction. Alternatively, the decision may be held over until the final hearing proposed for the end of April (and of course the judge is not bound to accept the expert opinion).

For the purposes of this hearing, the practical implications for the CRO are that a “limited” CRO would likely end in April, whereas an “extended” CRO would continue to apply to P’s father if new Court of Protection proceedings were to be initiated after the close of the current proceedings. The local authority considers this to be a real possibility, since their view now is that P is likely to be “on the cusp of capacity” and they predict that the COP is likely to be asked to reconsider his capacity in the future. The judge was invited to consider these projected possible future proceedings as the basis for making an ECRO rather than a “limited” CRO.

The hearing

Shortly after the start of the hearing, the judge allowed a 15-minute adjournment so that P’s father could read the position statement from the local authority. 

Like many litigants in person, he did not feel “on an equal footing” with represented parties. He’d experienced practical problems in preparing for this hearing, including accessing the password-protected position statement sent on Friday for this Tuesday hearing.  Although a second version had been sent the previous day (Monday), it had arrived in his inbox while he’d been driving to London for this hearing: he said he’d “parked in the emergency lane on the motorway” to look it, and that it refers to a great deal of case law he hasn’t been able to access. He also complained of having been sent the draft order “less than 24-hours before the hearing” (another familiar concern of LIPs). He had driven a long distance from his home to London, and stayed in a hotel overnight,  in order to attend this in-person hearing, which he’d requested in preference to a remote hearing because (he said) his “internet signal is not very good”, and he has “nowhere private”.^[ii] Before the adjournment, the father also said he had no intention of making further unmeritorious applications – and there was an inconclusive exchange between him and the judge about the extent to which the past actions enable accurate predication of future behaviour.

The judge accepted the father’s procedural concern about the position statement, while also pointing out that “over the years you’ve become extremely knowledgeable and you remain determined to keep making applications to the court”. He explained the basics of the different CROs – which was useful for me, although I think the father was already on top of the distinctions. Before the adjournment, the father pre-empted his later submissions by making the case that a CRO was unlikely to be of any value – partly on the grounds that there may not be any more hearings after April, and partly because “P’s mother is not part of these proceedings.  She can make applications, so what’s the point?”. The clear implication was that if he is banned from making (what judges see as) unmeritorious applications, P’s mother will do so in his place. He also raised – and in the judge’s view attempted to “re-litigate” – matters from previous hearings related to contact arrangements.

The judge asked counsel for the local authority what the “practical implications” of the CRO would be in circumstances where “conclusion of proceedings may be regarded as imminent”. Counsel for the LA replied: “P is likely to be on the cusp of capacity. If it’s determined that he has capacity there are likely to be some changes moving forward. We know that, irrespective of outcome on capacity, his wishes are to stay at [the placement] and continue to have support there. But there are things he’d like to change. He’d like more extensive access to his mobile phone – to telephone and internet and social media, without support from staff.  If he has such access, he may make decisions which may be unwise decisions. If he is putting himself at risk of reprisals or involvement in the criminal justice system, it’s likely that there will be an application to this court in future. Perhaps “likely” is too strong a word, but there is a real risk that P will be found to lack capacity in the future”.

The difficulty with making an application for an extended CRO (ECRO) to cover these projected future proceedings is the requirement by way of precondition that the applicant has “persistently issued claims or made applications which are totally without merit”, where “persistently” means at least three “totally without merit” certifications^[iii].  It was accepted that in this case there have been only two: an application for permission to appeal the final order of HHJ Gargan, which Poole J dismissed as “totally without merit” on 14^th October 2024), and then an application to ask questions of the expert, which HHJ Moreton dismissed as “totally without merit” on 24^th November 2025. The local authority argued, however, that “as is clear from Kumar^[iv] and explained in Ludlam, this court may review whether other applications, even though not certified by the judge at the time, but with hindsight, were made totally without merit.  It is submitted that many such applications made by [P’s father] are so”.  He invited the judge to consider the father’s applications of 16th April 2025, 3^rd June 2025 and 18^th July 2025 in that light.

Judgment

The judge briefly reviewed the proceedings to date and then turned to the Practice Direction relating to CROs in the Court of Protection: Practice Direction 22A.

Referring to Rule 22.1 (“where an application (including an application for permission) is dismissed, … and is totally without merit, the court order must specify that fact…”.) he recorded that “at the time of dismissing the application for permission to appeal the final order of HHJ Gargan (14^th October 2024),  I did consider it ‘totally without merit’ and did certify that.” (It was noted that Poole J had made the same decision about this application twice – once on the papers, and then again at an oral ‘reconsideration’ hearing – but it was agreed to count only as a single ‘totally without merit’ application.)

Turning to Rule 22.12 (“An extended civil restraint order may be made where a party has persistently made applications which are totally without merit“, my emphasis), the judge referred to Mr Davies’ “helpful skeleton” which references the case law on CROs and shows that “persistently” means at least three (and even then, the judge has discretion about whether or not to make a CRO). He said: “In the case of  Courtman v Ludlam [2009] EWHC 2067, Edward Bartley Jones QC held that in context, “persistently” has been established in case law to mean a bare minimum of three or more ‘totally without merit’ findings.  Secondly if the precondition for a making of a CRO is satisfied, the court still has discretion whether to make an order and whether a limited CRO would suffice.  The purpose is not to PUNISH but to protect the administration of justice and the other parties from abuse“. The judge also drew attention to the fact that the three unmeritorious applications must have been made within the same proceedings (Lilley v Aspermont UK Ltd [2014] EWHC 2364 (Ch)) – meaning that the previous Family Court applications cannot be taken into account in this case.

In Ludlam, it was established that, in determining whether or not a party has “persistently” made unmeritorious applications, the judge can count not only those certified as “totally without merit” at the time they were dismissed, but also other dismissed applications which might be so considered in hindsight. The judge was not minded to retrospectively treat the other applications made by P’s father as “without merit” because the judge who dismissed them but didn’t so certify them at the time “was certainly aware of her power to do that”, as evidenced by the fact that she did in fact certify ONE of them – but only one – that way.

The judge continued: “While of course the court would hope that no applications totally without merit would be made, and while it seems clear that litigation rather than communication with the other parties, is the first and not the last resort (and that is to be deprecated), two ‘totally without merit’ applications is not sufficient for me to make an extended CRO. In terms of a limited CRO, I take into account the appalling history of unmeritorious applications, and that must be relevant.  However, the current proceedings are likely to be concluded by the end of April or soon thereafter, given a clear expert opinion that P has capacity in all domains.  There are going to be one or perhaps two hearings in any event in the next few weeks.  A limited CRO is unnecessary in my judgment. [P’s father] points out – it’s not an attractive submission but I do take it into account – that it is open to P’s mother to make applications if he cannot. I have recent experience of that happening in another context and know the  futility of making a CRO under these circumstances.  It is unknown whether there will be future COP hearings. The local authority says there may be in future but this is a matter of speculation– and it’s perhaps not likely within the time period of 2 years. It is possible, though and I acknowledge that. It is important in COP not lightly to make CROs in a context in which family members are anxious about the wellbeing of their adult child. [P’s father] has represented himself today with eloquence. He assures the court he won’t waste the court’s time in future.  I take this with some pinch of salt as it has been a pattern – I take it into account but it is not a strong point in these proceedings. Considering all the circumstances, I’m not prepared to make the extended CPO sought. I consider it disproportionate, even if the threshold had been met – which it hasn’t, since there have been only two ‘totally without merit’ applications.  Furthermore, I am not satisfied that a limited CRO is either necessary or justified. The proceedings will end soon, there are already hearings at least one of which is going to take place, and the expert evidence is in favour of the outcome that he seeks (namely his son does have capacity in the five domains).  So, the application from the local authority is dismissed.“

Reflections

Despite having observed more than 700 hearings over nearly six years, I haven’t come across a Civil Restraint Order in the Court of Protection before.  I’m guessing they are rare in part because the vast majority of litigants do not persistently make unmeritorious applications, and even when they do, judges must surely be reluctant to curtail a person’s access to the courts except as a last resort. On the other hand, I have seen a few cases characterised by successive unmeritorious applications from family members, and it seems that, for whatever reason, other parties do not seem disposed to apply for CROs and the court does not seem disposed to make CROs on its own initiative.

There are very few published Court of Protection judgments dealing with CROs. As far as I know, though, there’s no requirement on the court to publish judgments relating to CROs, so it’s possible that there are more cases than can be discovered from the National Archives or BAILLI (as is definitely the case with COP committal hearings, despite a limited publication requirement)^[v]. Some published COP judgments concerning CROs are summarised below.

In the case of A Local Authority v MF & Ors [2022] EWCOP 54, two of a family member’s applications (one to remove the Official Solicitor’s representative and the other to remove the local authority as the protected party’s appointee) were dismissed as “totally without merit”. Having been told that bringing any more applications would risk a CRO, he submitted a COP 9 application to remove the Official Solicitor’s representative, signed not by him but by the protected party (who lacked capacity to make such an application). He went on to make two further applications which were also dismissed as “totally without merit”.  As far as I know, no CRO was in fact made in this case. The judge (Cohen J) said:  “In my experience of civil restraint orders, they seem often to be more trouble than they are worth. If any further applications are made by the family they will be dealt with at the next hearing. The issue of the civil restraint order can be put over to the next hearing in March or April” (if it was, there is no published record of that).

There is reference in a few COP hearings to CROs having been imposed by other courts – including in Family proceedings (Re D (A young man) 2020 EWCOP 1 ), the Court of Appeal (Re P (Property & Affairs Deputyship: Jurisdiction) [2024] EWCOP 77), and by the Kings Bench (in a case with two published COP judgments: Re P (Application to Withhold Closed Material: Concurrent Civil Proceedings) [2024] EWCOP] 26, and P v Manchester City Council [2024] EWCOP 77).   But these CROs don’t transfer across to the COP. There’s also a reference in one COP judgment to a “limited civil restraint order” having been made the previous year “to prevent Mr Michael Clarke making any further applications in the civil proceedings” ([2016] EWCOP 11) – I’m not quite sure what that means or who made it.

There are warnings about possible CROs in a small number of published COP judgments (e.g. A North East Local Authority v AC & Anor [2019] EWCOP 44; Re M [2015] EWCOP 69 §45(8)) and it looks as though one judge may have referred a case to a more senior (T3) judge to determine whether a CRO was required (Re P (Property & Affairs Deputyship: Jurisdiction) [2024] EWCOP 77 – but I don’t know the outcome.

I could find only two published COP judgments recording that CROs were actually made: (1) an Extended Civil Restraint Order made by Sir James Munby in Re A (A Patient) [2016] EWCOP38 and (2) a Limited Civil Restraint Order made by Mr Justice Cobb in A Local Authority v TA & Ors [2021] EWCOP 22. I describe them below.

(1).  Re A (A Patient) [2016] EWCOP 38 – Extended Civil Restraint Order

In 2016, the then-President of the Court of Protection, Sir James Munby, made an ECRO,  against Desmond Maurice Fitzgerald, the nephew of the protected party (“A”).  She was “an elderly lady” whose lack of capacity to make decisions for herself was said to be due to “schizophrenia present for many, many decades and the tragic consequences of the surgery to which she was subjected all those years ago”.

The Court of Protection story started three years earlier, in 2013, when Senior Judge Lush appointed A’s niece to be A’s Deputy for property and affairs.  Between 7 March 2013 and 9 May 2013, Mr Fitzgerald filed no fewer than nine unmeritorious applications with the Court of Protection, making allegations of very serious misconduct, including fraud and intentionally misleading the court, against both A’s niece and the solicitors acting for her and against her predecessor as A’s deputy, A’s sister B. In relation to that, SJ Lush said this: “There has been no effective challenge to C’s competence or integrity. Mr Fitzgerald’s allegations in this respect are simply bluff and bluster”.  His behaviour was described as ‘repetitive and vociferous’, ‘tantamount to harassment’, and ‘actionably defamatory’. Costs were awarded against him.

Desmond Fitzgerald appealed and the case came before Munby J who had this to say: “Mr Fitzgerald has been unrelentingly pertinacious in pursuit of what he believes to be his aunt’s best interests. Unhappily, his pursuit of that laudable endeavour has become obsessive and his desire to litigate (most of the time as a litigant in person) and to correspond with all and sundry has become compulsive. This obsessive compulsion is marked by the very large number of applications which Mr Fitzgerald has sought to make to the Court of Protection (at least 23; see below) and by the enormous number of emails with which he has bombarded all and sundry since 2013.” The judge referred to his “wild and scurrilous allegations”, which included an application for committal of a solicitor involved in the case (“His application for her committal is a farrago of nonsense”).

An Extended Civil Restraint Order was imposed:  “Those who have been harried by Mr Fitzgerald are entitled to be protected. The court is entitled to protect itself, its processes and, indeed, other litigants from having so much of its time taken up – wasted – by Mr Fitzgerald.”( 64. A (A Patient), Re [2016] EWCOP 38).

Litigation continued over the course of another two years (the aunt died in the Spring of 2018), and three more judgments were published: Re A (A Patient) (No 2) [2016] EWCOP 39; and Re A (A Patient, Now Deceased) (No 3), and Re A (A Patient, Now Deceased) (No 4). These subsequent judgments document what the judge clearly experienced as very challenging behaviour from Mr Fitzgerald.  His emails were “characterised by hectoring, intimidating bluster and absurd and defamatory allegations against anyone, legal practitioner or judge, about whom he has conceived some cause for complaint” and there were “many attempts by Mr Fitzgerald to rubbish any judgment by any judge with whom he chooses to disagree.” (§3). In the last judgment the judge issues another warning: “Mr Fitzgerald’s latest application is totally without merit. It is a time-wasting abuse of the process, which I accordingly strike out. If Mr Fitzgerald continues to display such forensic incontinence, he may find himself again subject to an extended civil restraint order” (§5).

The Court of Protection proceedings are perhaps best understood in the context of simultanous acrimonious divorce proceedings in the Family Court, culminating in criminal proceedings and a prison sentence.^[vi].

(2).  A Local Authority v TA & Ors [2021] EWCOP 22  Limited Civil Restraint Order

The adult son of a patient with Alzheimer’s who had already served a prison sentence for misappropriating his mother’s money (using his LPA for property and financial affairs) was banned from emailing the Court of Protection Court Office in January 2021 following a long period of “abusive and inflammatory means and language” (Re TA  (Recording of hearings; Communication with Court office) [2021] EWCOP 3).

The Operations Manager reported that the court had received 150 e-mails from TA in 2019, 217 e-mails in 2020 (total 367 – approximately – 15 per month) and that TA had made 39 COP 9 applications in the case over the 24-month period, 35 of them in 2020.  “Pausing here, the sheer volume of applications might well suggest that consideration ought to be given, when determining any of the outstanding applications before the court, to the grounds on which the court may consider it appropriate to make a form of Civil Restraint Order under CPR 1998 rule 3.11 and PD3C.” (Re TA  (Recording of hearings; Communication with Court office) [2021] EWCOP 3).

A month later, a second judgment (A Local Authority v TA & Ors [2021] EWCOP 22 ) dealt with the local authority’s application for a civil restraint order and Cobb J authorised a limited CRO for a period of  two years.   “There have been four occasions before this hearing began when applications have been dismissed as totally without merit, all of them within the last year. In addition, I have dismissed three applications as being totally without merit in the course of this hearing. There are another four recent occasions when applications have been dismissed as showing no reasonable grounds or no good reason. The threshold for the making of a civil restraint order is plainly crossed. I therefore will make a civil restraint order as the only way to restrict the level of applications.” (§91)

Beyond the Court of Protection

Beyond the COP there’s a large and unedifying catalogue of CROs against people who’ve dedicated themselves to using the law as a weapon against those with whom they disagree. Ironically, quite a few of them are lawyers, for example:

• A law professor “grossly misused the procedures of the courts” in a campaign of meritless claims against the University of Warwick and was served with an Extended Civil Restraint Order (https://www.lawgazette.co.uk/news/law-professor-with-profound-sense-of-grievance-banned-from-courts/5122394.article);

• A former solicitor appealing against being struck off (after being recorded covertly advising an undercover journalist on how to obtain fraudulent accountancy evidence for a spousal visa application) made eight “totally without merit” applications against the Solicitors’ Regulation Authority. The judge granted the SRA’s application to strike out the ninth claim, finding it to be abusive, totally without merit and an abuse of process – and made an Extended Civil Restraint Order against him. https://www.lawgazette.co.uk/news/ex-solicitor-caught-in-immigration-sting-barred-from-further-litigation/5124826.article
• A former solicitor struck off for dishonesty “appears to have lost all touch with reality and reason” and believes in  “a very wide-ranging conspiracy which embraces all the judges who have made decisions against her… all the counsel and solicitors involved in those decisions, including counsel and solicitors who acted on her behalf, as well as numerous others”.  She was made subject to a General Civil Restraint Order the same year, renewed every two years thereafter, amid lengthy litigation over a dispute with a property developer and continuing complaints about the intervention. To give her leave to continue with applications would “unleash a tidal wave of re-litigation and/or fresh litigation”. Every part of it would be an abuse of process, the judge held. (https://www.legalfutures.co.uk/latest-news/vexatious-ex-solicitor-cannot-start-litigating-again-high-court-says)
• A lawyer had made a series of job applications to law firms and public bodies and when unsuccessful relied on the Equality Act to allege a failure on a given respondent’s part to make reasonable adjustments to the recruitment process to accommodate his disabilities. There was no evidence that any of the known 42 claims he brought against law firms and public bodies had succeeded before an employment judge. A General Civil Restraint Order was designed to prevent further unmeritorious claims. (https://iclg.com/news/22708-serial-litigant-banned-from-issuing-employment-tribunal-proceedings#:~:text=The%20proceedings%20revealed%20Mr%20Khan’s,claimed%20he%20wanted%20to%20make.)

It was in fact a notorious barrister, Alexander Chaffers, whose litigation mania (he brought nearly 50 unmeritorious claims against leading members of Victorian society including the Prince of Wales, the Archbishop of Canterbury and the Lord Chancellor) led to the Vexatious Actions Act 1886[^vii]. This is an alternative (and I understand more cumbersome) way of seeking to curb unmeritorious applications.

Querulousness: A psychiatric approach

The historical decision to curb Alexander Chaffers’ unmeritorious claims by legal, rather than medical, means reflects what some authors see as a key distinction between English-speaking countries, where people persistently making unmeritorious applications are considered a purely legal problem, and the approach in Germany and France where psychiatric concerns are more likely to be raised.

Early German psychiatrists developed the notion of  “Querulantenwahn” (“querulousness”), “A form of so called paranoia in which there exists in a patient an insuppressible and fanatic craving for going to law in order to get redress for some wrong which he believes done to him. Individuals who fall victim to this disorder are always strongly predisposed …. extremely egotistical … know everything better … differs from other forms of paranoia in so far as the wrong may not be quite imaginary … the more he fails the more he becomes convinced that enormous wrong is being done to him”.  The “querulant” epitomizes the German medical approach to unreasonable complaints: the unmeritorious litigant subjected to legal sanctions like CROs embodies its English-language legal archetype. The burden placed on the courts and on agencies of accountability by querulousness as a  “disorder of behaviour” can be addressed  (say these authors) by mental health professionals who “provide insights conducive to its better management in courts and complaint organizations … thereby ameliorating the distress of the querulous and reducing the disruption they create for others“. The risk, of course, lies in the misuse of psychiatry to silence criticism and to pathologise litigation.  As these analysts recognise, it is not always easy to distinguish the “querulant” from the difficult or tenacious complainant, or even from social reformers and victims of gross injustice.^[viii]

Finally…

My conclusion from this brief review of Civil Restraint Orders in the Court of Protection is that I find myself surprised by how few there seem to be. I’ve already suggested some reasons why this might be so: most importantly, the majority of litigants do not persistently make unmeritorious applications, and even when they do, judges must surely be reluctant to curtail a person’s access to justice except as a last resort.

There may also be a problem with the certification of failed applications as “totally without merit” – which is a precondition for making a Civil Restraint Order. What does “totally without merit” mean? I’ve been unable to find a clear definition. Of course many applications are dismissed, and some applications (especially – inevitably – from litigants in person) are poorly conceived, badly expressed and may be submitted in ways that don’t comply with rules or practice directions. Applicants may identify a rational argument for permission to appeal, but a judge can sometimes be confident that, even taking the case at its highest, an appeal is bound to fail and so refuse permission. But dismissing an appeal on those bases is different from what underpins the legal concept of dismissing and certifying a “totally without merit” application – which, in the formal legal sense, is one that has no rational basis or no legal ground. There’s a (fuzzy) distinction between (1) arguable claims that the judge considers to have no realistic prospect of success and (2) “totally without merit” claims which have no rational basis on which they could succeed – at least that is the view of LJ Underhill in Wasif, seeking to clarify the meaning of “totally without merit” in judicial review cases (Samia Wasif and another v Secretary of State for the Home Department [2016] EWCA Civ 82). I’m not sure if Court of Protection judges are using that distinction (or even if that distinction applies in the COP). I’m aware of many Court of Appeal “totally without merit” certifications relating to appeals from the COP, but I don’t see COP judges systematically considering whether or not they should be certifying applications they refuse as “totally without merit” (or the bases on which they might decide that) and I wonder whether perhaps they do so only in those rare cases at the point at which a Civil Restraint Order is actively contemplated.^(ix) This is a tricky area (especially for a non-lawyer) and I’d welcome legal feedback and commentary.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)

[i] _{I am very grateful to Brett Davies for his help in facilitating my understanding of the proceedings.  He raised with the judge my request for the local authority’s position statement, and he subsequently very helpfully volunteered also to disclose a chronology of the father’s “unmeritorious applications” and to liaise with P’s Accredited Legal Representative for permission to disclose the LA position statement from the hearing of 5^th December 2025. Disclosure of all three documents was unopposed, and was approved by the judge, and has proved invaluable in supporting my ability to understand and report on this case.}

[ii] _{Arrangements could surely have been made – as I’ve seen for other LIPs in other hearings –  to support remote attendance if these problems had been raised sooner, but the judge appeared not to know why an in-person hearing had been requested until the very end of today’s hearing when the father applied for costs.}

[iii] _{Courtman v Ludlam; Sartipy v Tigris Industries [2019] EWCA Civ 225; [2019] 1 WLR 5892; and CFC 26 Ltd and another v Brown Shipley & Co Ltd and others [2017] EWHC 1594 (Ch); [2017] 1 WLR 4589}

[iv] _{R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990; [2007] 1 WLR 536}

[v] _{I understand that the name of anyone against whom a Civil Restraint Order is made must normally be published: there’s a public “List of extended civil restraint orders” and a “List of general civil restraint orders”) – neither of which has any entries indicating that the “court where order issued” was the Court of Protection.}

[vi] _{See also: https://www.wrigleys.co.uk/news/court-of-protection-news/how-not-to-behave-as-a-litigant-in-person/ and https://www.wrigleys.co.uk/news/court-of-protection-news/persistence-doesnt-pay-also-known-not-behave-litigant-person-revisited/}

[vii] _{Taggart, Michael (2004), “Alexander Chaffers and the genesis of the Vexatious Actions Act 1896”, Cambridge Law Journal, 63 (3): 656 684.}

[viii] _{Paul E Mullen and Grant Lester 2006. Vexatious litigants and unusually persistent complainants and petitioners: From querulous paranoia to querulous behaviour, Behavioral Sciences and the Law 24: 333-349l Levy, Benjamin From paranoia querulans to vexatious litigants: A short study on madness between psychiatry and the law. https://pubmed.ncbi.nlm.nih.gov/25698684/}; _{White, S. “The vexatious litigant” WAVR-21 (2012) https://wavr21.com/the-vexatious-litigant/}

[ix] _{In a previous immigration case, R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1191, a differently constituted Court of Appeal rejected an argument that “totally without merit” should be reserved for cases “so hopeless or misconceived that a civil restraint order would be justified if such applications were persistently made.” Instead they held that it “means no more and no less than ‘bound to fail'”. I have benefitted from this blog post: https://www.ein.org.uk/blog/judicial-review-what-meant-totally-without-merit}