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The case of David John Frosdick v The Official Receiver [2023] EWHC 1262 (KB) considers the ongoing application of Extended Civil Restraint Orders ("ECRO") where the applicant attempts to re-litigate a matter.

The background concerned a former bankrupt, Mr David Frosdick ("the Applicant"), who was made bankrupt on the petition of his former solicitors on 25 May 2011. The basis for the bankruptcy petition being presented was that the Applicant, who had been pursuing a claim for personal injuries with the assistance of a Conditional Fee Agreement ("CFA"), failed to pay his former solicitor's fees on the CFA having been terminated.

Following the vesting of the Bankrupt's estate in the Trustee, the Applicant sought an assignment of the cause of action against his former solicitors for professional negligence ("the Claim").

The Applicant considered he had a Claim against his former solicitors for failure to issue protective proceedings in relation to his losses arising out of his personal injury claim, intending to pursue a claim "for €782,000 by way of loss of profits arising from contracts for the provision of poker software that he had made with two gaming institutions, each of which had to be cancelled because of his injuries. He also wanted to claim a further €17 million or thereabouts reflecting what he said was the value of the loss of a chance of earning profits from those contracts".

The Trustee disclaimed "any rights of action and claims against Cobbetts for defamation and/or any other matter". The Applicant then made a series of applications to the Court, all unsuccessful, culminating in the first ECRO against the Applicant on 26 August 2015. The ECRO restrained the Applicant "from issuing claims or making applications in any County Court concerning any matter involving or relating to or touching upon or leading to the proceedings in which the ECRO was made, without first obtaining the permission of a Circuit Judge."

The Applicant then made a further series of applications requesting permission to issue proceedings, notwithstanding the ECRO, all of which were refused. The subsequent applications resulted in further ECROs being imposed on 2 July 2018, 18 June 2020 and 17 June 2022, made as the Applicant persisted in wishing to relitigate matters which had been definitively decided against him, and that the proposed claims were totally without merit.

The Applicant issued a further application to challenge the current ECRO on 15 November 2022, inviting the Court to set aside the then current ECRO on the basis that "it was made without reliable evidence and there was no power to make it; and the issues relating to the Insolvency Rules 1986 raised in his 22 March 2022 application have never been dealt with." The Applicant sought to persuade the Court that the OR and the Trustee had breached their duties which in turn led to his inability to pursue the Claim, and that this was not a point that had been fully litigated previously.

The Court was not persuaded by any arguments presented by the Applicant. Further, the Court was concerned about the Applicant's continued attempts to re-litigate matters despite the ECRO imposed upon him. The Court referred to paragraph 3.4.5 of the White Book 2022 in the judgment, being the Henderson abuse principle. The Henderson abuse principle seeks to preclude a party from attempting to re-litigate a subject matter already decided upon by the Court in subsequent proceedings, if it is clear that the new set of proceedings is merely an attempt to re-litigate without a further substantive cause of action. The judgment stated that "Applying that approach, I agree with Foskett J that it would not be fair to permit Mr Frosdick to litigate another claim against the OR or Trustee, arising out of exactly the same factual scenario as the earlier claims, especially given the significant delay since the key events and the number of times Mr Frosdick has sought to litigate (and has litigated) the issue in various guises."

The Court also made various comments that further claims intimated by the Applicant would also be treated as being an abuse of the process. The Court were satisfied that there was a proper basis for the making of the ECRO on 17 June 2022 and therefore the Applicant's application was dismissed. The ECRO remains imposed upon the Applicant.

This case shows that the Court will take a robust approach when litigants in person make applications attempting to relitigate points already determined. However, even with this robust approach, the number of applications made in this bankruptcy demonstrates the difficulty office holders encounter when faced with a seemingly never ending stream of applications. ECROs can be a useful tool, but this case shows that a determined individual can continue to engage office holders in litigation which has no benefit to the estate. Will this particular saga continue, or is this now the end…?

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