[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Supperstone v Hurst & Anor [2009] EWHC 1271 (Ch) (08 June 2009) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2009/1271.html Cite as: [2009] 1 WLR 2306, [2009] NPC 75, [2009] BPIR 1291, [2009] WLR 2306, [2009] EWHC 1271 (Ch)

[New search] [Buy ICLR report: [2009] 1 WLR 2306] [Help]

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		8th June 2009

Introduction

1. This is an application by Antony Peter Supperstone, the trustee in bankruptcy of the estate of the first respondent, (the "Trustee"), pursuant to Rule 3.11 of the Civil Procedure Rules 1998, the accompanying practice direction to Rule 3.11 and the Court's inherent jurisdiction, for an extended civil restraint order ("ECRO") against both the first and second respondents ("Mr and Mrs Hurst").
2. The ECRO seeks to restrain Mr and Mrs Hurst from (1) making any claims against the Trustee and persons associated with him (being his former firm, BDO Stoy Hayward ("BDO") and solicitors Taylor Wessing ("TW")) where such claims arise out of or concern any matter relating to the bankruptcy proceedings, or the conduct of the Trustee as trustee in bankruptcy of Mr Hurst or nominee of Mr Hurst's IVA,; and (2) from communicating with the Applicant, BDO, TW or any partner, former partner, employee or former employee thereof, by telephone, fax, or email (save for certain limited purposes), without first obtaining the permission of a judge of the Chancery Division.
3. The Trustee's case is that Mr and Mrs Hurst have persistently issued claims and made applications against both the Trustee and BDO, which applications were vexatious or totally without merit and that an ECRO in those terms is not only merited in light of the previous conduct of Mr and Mrs Hurst, but necessary in order to (i) protect the Trustee, BDO and those acting on their behalf (ii) enable the bankruptcy estate to be closed and (iii) prevent further abuse of the process of the Court.
4. Mrs Hurst has not appeared and is not represented. Mr Hurst appeared in person and has made further submissions during the time between the hearing and delivery of this judgment. He argues that the relief sought has become unnecessary because, since the end of 2008, he and his wife have decided to put the litigation behind them.
5. The Trustee is not prepared to rely on this assertion in light of the extensive history to this matter and invited Mr and Mrs Hurst to give consent to (or not oppose) the making of the Order, but neither has chosen to do so.

The General Background

6. The following account is a short summary of the material contained in witness statements from the Trustee dated 19^th December 2008 and Mr Smyth of TW dated 9^th January 2009.
7. Mr Hurst's bankruptcy proceedings, and the numerous claims and applications made by Mr and Mrs Hurst, find their origin in litigation which commenced in the early 1990s. Mr Hurst was an equity partner in a firm of solicitors called Malkin Janners. A dispute arose between the partners leading to the premature dissolution of the partnership on 31 October 1990. Mr Hurst objected to the dissolution and refused to sign the dissolution agreement,
8. Litigation ensued concerning the effect of repudiation of the partnership deed. Mr Hurst sought an order for a partnership account to be taken. The application came before Carnwath J. who on 7^th April 1995 refused to grant the relief sought. This was the source of great disappointment and Mr Hurst appealed the decision even as far as the House of Lords but was unsuccessful.
9. He also brought various pieces of alternative litigation seeking to attack the initial decision refusing him an account. That litigation consisted in the main either of claims in negligence against his former solicitors and counsel, or proceedings for a declaration that the original judgment had been obtained by his partners by fraud.
10. The claims were unsuccessful and not infrequently the judges who rejected them commented adversely on their merits: see for example the comment of Lightman J. that Mr Hurst had lost all perspective in relation to the partnership dispute and had become "a person obsessed with the injustice which he considers has been perpetrated on him and is incapable of a balanced evaluation of the facts". To like effect are comments of Warren J. (at paragraph 21 below); and Lawrence Collins J. who stated inter alia "I am satisfied that he is a man obsessed with the consequences of what he described in court as the unexpected and disastrous judgment of Carnwath J. in 1995. ..... / am satisfied that this action is bound to fail and is an abuse of the process ..." "... Mr Hurst has been waging an obsessive campaign. I agree with the remarks of Ferris J that Mr Hurst has been unwilling to face up to reality and with the remarks by Lightman J. that he has been so disturbed by the consequences of the dissolution of the partnership that he is incapable of a balanced evaluation of the facts. It is probably too much to hope that Mr Hurst, perhaps with independent advice, will take stock of the situation
11. The dispute with his former partners led to the presentation against Mr Hurst of a statutory demand on 23^rd May 1997 for a failure to pay his share of the rent for the firm's premises. Mr Hurst sought to set aside the statutory demand: he failed and his appeal was rejected, the Court of Appeal concluding that the suggestion that Mr Hurst would be shown to be owed monies if a partnership account was taken had "no substance" save as regards a proportionate claim to post-cessation book debts that would be less than the amount due from him in respect of rent.
12. A bankruptcy petition was subsequently presented on 21^st June 2000: Mr Hurst countered with a proposal for an individual voluntary arrangement. The proposed arrangement prepared by the Trustee in his capacity as nominee for Mr Hurst included a statement based on information provided by Mr Hurst and a signed declaration from Mrs Hurst that the matrimonial property was held beneficially in equal shares. The arrangement which had been proposed was rejected by the court as a sufficient basis on which to make an interim order (and adjourn the petition): this was because its terms envisaged the continuation of the litigation to which Mr Hurst had been a party such that it would not lead to finality or (Mr Registrar James feared) the benefits it was proposed would be conferred on creditors. A bankruptcy order was therefore made and the Trustee was appointed on 11 October 2001.
13. Mr Hurst's former partners who had obtained the bankruptcy order also obtained {by consent) an order akin to an ECRO against Mr Hurst in 2002 to prevent him from making any further applications or appeals or taking any steps against them without obtaining the leave of the Court. The order also extended to preventing Mr Hurst from corresponding with the parties to the order or their solicitors.

The Bankruptcy Proceedings

14. Within the bankruptcy, the Trustee took steps to realise Mr and Mrs Hurst's matrimonial property (the "Property"). The Trustee made an application on 6^th October 2003, and on 21^st December 2004 obtained an order for sale and possession of the Property, along with a declaration that the Property was held beneficially 50:50 as between the Trustee and Mrs Hurst, subject to a relatively small equity of exoneration in favour of Mrs Hurst.
15. On 17^th January 2005 Mrs Hurst appealed against the order, represented by Mr Hurst, but the appeal was dismissed. Mr Hurst then on 6^th September 2005 sought to stay the order for possession on the basis of a claim for negligence that he had issued against BDO (i.e. that there was a good claim against BDO which, if successful, would enable him to acquire the Trustee's interest in the property). The basis of the allegations of negligence were that the Trustee ought (when acting as nominee) to have suggested that the equity in the property available might be less than 50% in a bankruptcy, and that an equity of exoneration would arise. In that case, it was suggested that the Court would have made an interim order, the IVA would have succeeded and that Mr Hurst would not have been made bankrupt.
16. The stay application was initially adjourned to enable the strike out application/summary judgment application on the negligence case to proceed.
17. At a hearing on 10 October 2005 Master Moncaster struck out Mr Hurst's application: the Master concluded (at paras 26 and 31 of his judgment) that the allegations of negligence were hopeless and further that the alleged negligence could not in any event be causative of the loss alleged. Mr Hurst appealed but the appeal was dismissed by Peter Smith J. who commented (at paragraph 62 of his judgment) that it could not be said with any credibility that the petitioners would have allowed an IVA to go ahead. Apart from which the Court had no jurisdiction to make a second interim order within 12 months of having made the first by virtue of Section 375 of the Insolvency Act 1986 (see paras 71-76 of the judgment).
18. When Mr Hurst's adjourned application came back before the Court following the strike out of the BDO claim, a further stay of possession was sought both on the basis of an appeal against the strike out, and a further set of proceedings which had been commenced against BDO. In the second set of proceedings, Mr Hurst alleged negligence based on a refusal by the Trustee to pursue a claim for a partnership account. The court refused the stay application, which decision was upheld on appeal by Warren J. on 31 October 2005. On analysis, that application was also wholly without merit in light of the Court of Appeal comments that there was no evidence to suggest that Mr Hurst was owed anything from the partnership if an account was taken.
19. On 16 February 2006, Warren J. refused another application to stay the possession proceedings based on Mr Hurst's appeal against the decision of Master Moncaster to dismiss the first BDO claim. The learned judge emphasised that Mr Hurst had a very weak case which was bound to fail, as Peter Smith J subsequently confirmed.
20. On 17 February 2006, Warren J. dismissed a further application by Mr Hurst for a stay on the basis that it was the same application that he had dealt with the day before.
21. Mrs Hurst then (on 24 February 2006) made an application to Registrar Rawson to stay the possession order, based (in part) on a claim that she had brought against BDO. That claim was based on an alleged contractual claim, misrepresentation or negligence claim, arising out of the documents that Mrs Hurst signed for the purpose of advancing Mr Hurst's IVA proposal. It was also subsequently struck out (in July 2006) by Master Bragge. Mrs Hurst's appeal failed, her point being described on appeal by Warren J. as (at least in part) "completely unarguable" largely because none of the representations alleged to have been made were made (see paragraph 52). Warren J. again noted at the end of his judgment that "/ have on previous occasion, as has Peter Smith J, expressed the hope that Mr Hurst might recognise that the various claims against Mr Supperstone and BDO have no merit and, as Peter Smith J put it, that he might put all this behind him and get on with his life. He is, I am afraid, unable to see this case in a rational light. "
22. No stay was granted on the basis of this claim. Registrar Rawson, however, allowed a short stay (of 10 days) based on the illness of Mrs Hurst's mother and the difficulties that this was causing her.
23. On 10 May 2006, a further stay application was made by Mrs Hurst based on her claim against BDO (which had not at that time been struck out). The application was refused by Registrar Jaques on 17 May 2006. On 19 May 2006 (being the day on which the bailiffs had been instructed to take possession of the Property), three applications by Mrs Hurst were heard seeking to stay the grant of possession (including an application before Rimer J. to finally stave off the grant of possession). None succeeded, and the Trustee obtained possession of the Property. Mr Hurst subsequently sought to review the decisions of Registrar Jacques and Rimer J. of 19 May 2006 (i.e. decisions refusing to stay the grant of possession), which application was refused by Registrar Jaques and described as "hopeless".
24. Once possession had been obtained, Mrs Hurst sought to offer to purchase the Trustee's interest in the Property. That offer was not accepted. In June 2006, Mr Hurst sought to challenge the Trustee's decision in this regard pursuant to Section 303 of the Insolvency Act 1986. That application was rejected by Warren J. His judgment of 8 June 2006 described the application as being "wholly without merit" and an application that "should never have been made ".
25. The Trustee was subsequently forced to seek a court order executing the conveyance of the Property to a third party. On 7 August 2007, David Richards J. granted that order and dismissed an application by Mrs Hurst (treated as akin to an application pursuant to Section 303) to challenge the Trustee's decision to sell. Ultimately, Mrs Hurst made an offer to the Trustee which matched the third party's offer and the Trustee sold his interest in the Property to Mrs Hurst.
26. Notwithstanding this, Mr Hurst sought on 19 February 2007 to review the order of David Richards J. on the basis that the Trustee had misled the Court. That application was rejected by Lindsay J. on 13 March 2007.
27. In October 2007, Mr Hurst issued another application pursuant to Section 303 seeking to challenge the Trustee's conduct on two grounds: first, as to whether a life insurance policy fell within the estate, and secondly whether the Trustee ought to have obtained the opinion of Queen's Counsel on the prospect of successfully claiming against Mr Hurst's former partners. Simmonds J. dismissed the Section 303 challenge in January 2008 as being "totally without merit". The question of whether a limited civil restraint order applicable to the bankruptcy proceedings only should be made was adjourned in order to give the Trustee an opportunity to prepare and bring an application for an ECRO if so advised.
28. Briggs J. refused permission to appeal against the decision of Registrar Simmonds in March 2008, and declared the application to appeal against the decision not to seek the opinion of Queen's Counsel as being "wholly without merit".
29. Proceedings were then brought in the name of Mrs Hurst (albeit litigated on her behalf by Mr Hurst). On 2 May 2008, a claim was made for (i) rescission of the Court's orders of 17 and 19 May 2006 (i.e. those of Registrar Jaques and Rimer J. refusing a stay of the original possession order) (ii) rescission (on the grounds of misrepresentation, duress and undue influence) of the deed entered into between Mrs Hurst and the Trustee whereby the Trustee's interest in the Property was transferred to Mrs Hurst (iii) reimbursement of the sum paid pursuant to that Deed and (iv) damages and interest.
30. Mrs Hurst's claim was struck out by Deputy Master Behrens on 17 September 2008, who concluded that Mrs Hurst's application was "wholly without merit" and "bound to fail". A limited civil restraint order was made against Mrs Hurst. Notwithstanding this, and that her claim as pleaded was struck out, Mrs Hurst immediately wrote on 22 September 2008 to state that she proposed to seek to amend her Particulars of Claim to plead fraud against the Trustee. An appeal against the strike out decision was refused on both paper and orally by Arnold J. on 20 October 2008 and 4 December 2008.

THE APPLICATION:

31. The current application was issued on 9 January 2009, and on 12 January 2009 the Trustee's evidence was served on Mr and Mrs Hurst.
32. An initial directions hearing took place before Chief Registrar Baister on 11 February 2009, at which directions were given in order to give Mr and Mrs Hurst an opportunity to respond to the application. Neither attended the directions hearing. That day TW wrote to Mr and Mrs Hurst individually setting out the terms of the order made at that hearing. The order was subsequently served upon each of them: see the letters of 12 and 13 February 2009. No evidence was filed on behalf of Mr and Mrs Hurst. TW subsequently took steps to draw the hearing to the attention of Mr and Mrs Hurst. The only response received was a letter dated 28 April 2009 in which they questioned the need for the grant of any relief.

The approach in principle

33. An ECRO prevents a litigant from "issuing claims or making applications in the High Court or any County Court" not merely within the existing proceedings, but also in new proceedings which arise out of or concern the existing proceedings (in this case, Mr Hurst's bankruptcy). The grant of an ECRO is an exercise of the Court's inherent jurisdiction to prevent the abuse of its own processes: see Ebert v Venvil [2000] Ch 484 at 498 (which power is now reflected in the rule-based regime set out in the Practice Direction to CPR 3.11, see especially at paragraph 3.1).
34. An ECRO should be made by a judge of the High Court in circumstances where a party has "persistently issued claims or made applications which are totally without merit": see CPR Practice Direction - Civil Restraint Orders paragraph 3.1. To justify an ECRO, it should be shown that:

(1) The respondent has persistently issued claims or made applications which are totally without merit. As was explained in Bhamjee v Forsdick [2004] 1 WLR 88 per Lord Phillips MR at [42], "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". This has subsequently been described as "an obsessive approach to a single topic" per Lord Justice Brooke in R (on the application of Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990 at [60], and (2) The respondent has issued and made applications in more than one set of proceedings: see Connah v Plymouth Hospitals NHS Trust [2006] EWCA Civ 1616 at [23] per Dyson LJ.

35. When considering whether to make an ECRO:

(1) The applicant can rely on proceedings as being totally without merit, even if this is not recorded as a finding on the face of the order. This will, however, require a more detailed examination of the earlier litigation history: see Kumar at [67] and [68]. By contrast, where a decision has expressed the view that an application or claim was wholly without merit, the Court should not re-review the application or claim: see Kumar at [79];

(2) The fact that some applications by the Respondent have had some, or a modicum, of success does not prevent an order being made: see Thakerar v Lynch Hall & Hornby [2005] EWHC 2751 (Ch) per Lewison J at [6] - [8];

(3) The Court should bear in mind that the Court of Appeal has indicated that judges should be more willing to make ECROs in light of the steadily increasing nuisance represented by vexatious litigants: per Lord Phillips MR in Bhamjee at [41].

36. It should be noted that the application in the present case seeks also an order restraining Mr and Mrs Hurst from communicating with the Trustee, BDO and TW and its employees by various media: see the application summarised in paragraph 2 (2) above. The application is supported by the evidence of Mr Smyth of TW who states that the correspondence generated by Mr Hurst to date exceeds 60 lever arch files, and that he regularly subjects TW to what is described as a deluge of unreasonable correspondence: unreasonable both due to its sheer volume, as well as the unrealistic timescales that Mr Hurst unilaterally imposes for either a response or compliance with his demands to be met. Mr Hurst has in the past contacted the Trustee/BDO/counsel directly (contrary to TW's requests) when he does not like TW's responses. He has made repeated complaints to the Law Society regarding the conduct of the solicitors acting for TW, all of which complaints have been held to be unfounded. I have inspected some of the correspondence and it is exactly as represented and quite extraordinary.
37. It is of course plain that the wording of section 3 of the Practice Direction does not appear to empower the court to make an order under the ECRO jurisdiction which prevents the person subject to the order from engaging in any form of mere communication with the person for whose benefit the order it made.
38. The Trustee however argues that the jurisdiction to grant relief in order to protect against the actions of a vexatious litigant is very wide and, it was submitted, sufficient to enable the court to grant relief in the form requested. See, for example AG v Chitolie [2005] BPIR 267 - where the Court extended an order to prevent a vexatious litigant from acting as a litigation friend or McKenzie friend or otherwise assisting any third part in the conduct of civil proceedings without the leave of the Court; see also AG v Ebert [2002] 2 All ER 789 -where it was held that the Court's supervisory role extends beyond the mere regulation of litigation and of litigants who have submitted themselves to the compulsory jurisdiction of the court, and also includes the regulation of the manner in which the court process may in general be utilised. Whilst it was conceded that neither case is precisely on point, it was submitted that the correspondence in question will normally be a precursor to litigation, or sent in anticipation of litigation and the Court ought therefore be willing to restrain Mr and Mrs Hurst in the manner suggested in order to enable the Court to exercise supervisory control over their litigation conduct.
39. I am unable to accept that the court's power under the ECRO procedure extends to enable it to curtail the entitlement of Mr and/or Mrs Hurst (or any Defendant to an ECRO application) to communicate with whomsoever he or she wishes. The ECRO procedure was originally founded on the need to prevent an abuse of its process and not on the equally desirable objective of preventing harassment to persons. There is a Prevention of Harassment Act 1997 which is designed to provide protection to individuals (but not companies) against some forms of pure harassment: I do not suggest that it would be the appropriate source of relief in the present case (it has not been even mentioned in argument) but the existence of a specific provision like the 1997 Act leads me to doubt whether it would be appropriate to stretch the inherent jurisdiction of the court embodied in the ECRO procedure beyond the bounds set by existing case law.

Merits of the application

As regards Mr Hurst:

40. As the history recorded above discloses, it is beyond dispute that Mr Hurst has persistently issued claims and made applications in more than one set of proceedings which were totally without merit. They are all illustrative of an irrational refusal to take "no" for an answer. Mr Hurst for his part does not dispute this.
41. In these circumstances, the trustee submits that the case for making an ECRO against Mr Hurst is clear and obvious. In addition, the Trustee argues as follows:

(1) It is of significance that, other than in respect of the initial trial of the sale and possession application, Mrs Hurst has at all times (despite the efforts of the Trustee, those acting for him and the judiciary to persuade her to obtain independent legal advice) been represented by Mr Hurst either as a solicitor or a litigation friend;

(2) The effect of the litigation has been to lead to costs orders being made in favour of the Trustee and BDO in excess of £120,000 (of which approximately £60,000 have already been the subject of assessment by the Court): in practical terms, those costs orders are worthless as against Mr Hurst (a former bankrupt).

(3) The scale of the litigation waged by Mr and Mrs Hurst over recent years has been significant. It is such that there are no funds remaining in the estate enabling the trustee to pay a dividend to creditors (whose unsecured claims exceed £500,000). Nor are there any funds remaining enabling the Trustee to receive any remuneration for further work (the Trustee already has over £70,000 of unrecovered time costs). However, the Trustee is still required to close the estate, which actions will include conducting a final reconciliation of the trustee's insolvency services account, paying any final legal fees out of the funds remaining, issuing a final report to creditors with notice of a final meeting, holding the final meeting and then submitting his final statutory accounts. The Trustee does not wish to commence taking such steps without the prior protection of an ECRO. In these circumstances, an ECRO will serve a useful purpose. It is both necessary and appropriate.

The Response of Mr Hurst:

42. In response, Mr Hurst told me that he accepted that he had made many applications, especially during 2006, which were hopeless: this was largely attributable to the fact that neither he nor his wife were able to fund the cost of legal representation and the issues which arose were outside his area of expertise; he had been rendered homeless and was under considerable stress, living in the home of his mother-in-law who suffered a stroke. These things, he said, were now 3 years old: had an ECRO been obtained then it would have expired by now. He had also in two instances had partial success.
43. When he consented to a CRO before Peter Smith J. on 25^th November 2002 (on the application of his partners) it was relatively straight forward for someone subject to an order to issue an application for permission to bring proceedings if he wished to do so; now as a result of a change in the rules, a fee is charged which he cannot afford, which is refunded only if permission to bring proceedings is given. The effect of such a rule is that he would effectively be shut out from the courts and would constitute a breach of the Human Rights Act.
44. Mr Hurst also said that the last time he issued was in January 2007: he accepted that his application failed which was confirmed when he was refused permission to appeal on 17^th April 2008 by Briggs J. at which date he "closed the book". The letter from the Trustee's solicitors, TW, giving him notice of an intention to apply for an order, was on 21^st January 2008 - that is now some 16 months ago. He submits that the court needs further evidence that unless restrained he will be likely to issue further proceedings. There is, he says, insufficient evidence to justify such a conclusion.
45. As a final point, he raised a matter which he says goes to the credibility of the Trustee. He points out that the Trustee is no longer a partner at BDO nor, he believes, a consultant either, contrary to an assertion in an earlier witness statement. He believes that he now works on his own from home and is a self employed driving instructor.
46. After the hearing Mr Hurst has sent to me a number of submissions and statements in which he continues to question the professional status of the Trustee, and whether he has given appropriate notice to all creditors of a meeting in 2007. There have been three substantial documents, sent on 12^th and 20^th May 2009 and 8^th June 2009 respectively, in each of which he has developed and repeated the two points that (1) the Trustee had improperly described his status in the witness statement he had lodged with the court, nor had he described properly what was his status and present address. Mr Hurst therefore doubted his credibility; (2) he had therefore approached three large creditors who did not attend a creditors meeting on 20^th June 2007; those creditors did not recollect having received notice of the meeting. The significance of this, he has argued, is that it was at that meeting that the attending creditors approved that the Trustee could recover expenses of £105,697.52 in respect of the charges for litigation against Mrs Hurst, notwithstanding that those fees had been reduced at a detailed assessment to the sum of £53,123.12. The Trustee had also committed a contempt of the court by not complying with Mr Hurst's demand that he address in a witness statement the points raised and by not attending the hearing. He contends that these matters are relevant to the Trustee's credibility and the exercise of my discretion, whether to make an order or not.

Conclusion in relation to Mr Hurst:

47. It is clear that the Trustee has established much more than the minimum qualification for the making of an ECRO. Whether an ECRO should be made depends on the exercise of the court's discretion which depends on a number of factors which must be weighed in the balance. I accept Mr Hurst's argument that I should not normally make an order unless I am satisfied that there is a real risk that without an order he would continue to pursue proceedings which are vexatious or without merit.
48. Although the summary of events does show that 2006 was the highpoint of Mr Hurst's unmeritorious applications, I do not accept his contention that there has been nothing of substance since the beginning of 2007. It seems to me that, for the purposes of assessing whether he remains a risk of continuing unmeritorious proceedings, it is legitimate to take into account those proceedings which he furthered in the name of Mrs Hurst in 2007 and 2008. They demonstrate two aspects of his character relevant to the risk of his activities continuing: the first is a weakness of self-control and a drive to continue the fight; the second is a lack of judgment as to the relevance of the point at the centre of his complaint.
49. It seems to me also that I am entitled to take into account the three sets of submissions which he made to me between the hearing and the delivery of this judgment. The repetition of the points in those submissions confirms his persistence. The character of the points confirms the weakness of his judgment. Contrary to his arguments, I have come to the conclusion that the outcome of this case does not in fact depend on the credibility of the Trustee but on whether the basis for an order has been proved to exist from the records of previous proceedings and, if it has been so proved, whether the Court is persuaded that the risk of further proceedings justifies the making of an order.
50. The important point to note is that the appointment of the Trustee is a personal appointment. It is relevant that BDO is standing behind him notwithstanding the fact that his full time employment with the firm has come to an end. It is relevant that there are no funds in the estate. BDO will be funding the whole of the exercise necessary to wind up the estate. In my judgment the Trustee and BDO are both entitled to the protection of the Court while that process is going on if the risk of repeated proceedings remains of substance. The serial letters written to me in the time which has elapsed between the hearing and the handing down of this judgment (and the 13 or so letters passing between Mr Hurst and TW) are final proof to me that, contrary to his submission, he has not "closed the book" but that the tendency to be sparked into action by the sort of matters as those with which the Trustee will have to deal in winding up the estate remains very much alive.
51. I therefore have reached the conclusion that an ECRO ought to be issued against him. I would welcome submissions from the parties as to the length of the order which ought to be made.

As regards Mrs Hurst:

52. Mrs Hurst did not appear before me and Mr Hurst was at pains to explain that he did not represent her. I have therefore had to consider the case against her without the benefit of any submissions from her.
53. The detail which I summarised in paragraphs 15, 21-25, 29 & 30 above leads me to conclude that Mrs Hurst has made at least three claims or applications within the bankruptcy proceedings, or against BDO/the Trustee in relation to the conduct of the IVA proposal and/or bankruptcy, which expressly (or on analysis) were wholly without merit.
54. First there is the claim for damages for negligence brought against BDO/the Trustee, which was struck out by Master Bragge on 12 July 2006. See also the reasons of Warren J dismissing the appeal against this decision. Second is the application for a stay of the order for possession of the Property, which was dismissed by Mr Registrar Jaques on 17 May 2006. Thirdly, there is the claim brought against BDO/the Trustee for inter alia rescission of various previous orders made by Registrar Jaques and Rimer J., rescission of the deed of assignment relating to the Property and damages: this claim was struck out by Deputy Master Behrens on 17 September 2008 and declared to be wholly without merit.
55. It is clear to me that the Trustee has established as against Mrs Hurst that she has persistently issued proceedings and made applications in more than one set of proceedings which were without merit. It is clear that Mr Hurst was probably the driving force in the taking and conduct of these proceedings. I am confident that I should exercise my discretion to make an order against her as well as against Mr Hurst. That is because an ECRO solely against Mr Hurst is likely to be ineffective unless relief is also granted against Mrs Hurst. I am reminded that Warrren J. has previously stated that it is not possible to divorce Mrs Hurst's applications from those of Mr Hurst, because Mr Hurst runs the litigation on behalf of his wife. Both Lindsay J. and Registrar Jaques have expressed similar views.
56. In the circumstances therefore I have concluded that it is necessary that there should also be an ECRO made against Mrs Hurst in like terms and for a like period as the order I propose to make against Mr Hurst.