Introduction

El Diwany v Solicitors Regulation Authority ([2023] EWCA Civ 888) is a landmark decision by the England and Wales Court of Appeal (Civil Division), delivered on July 26, 2023. The case revolves around Mr. El Diwany, a former solicitor, who engaged in prolonged litigation against various judicial and regulatory bodies, alleging bias and seeking to reopen dismissals and sanctions imposed upon him. Central to Mr. El Diwany's claims are accusations of actual and apparent bias stemming from what he perceives as Islamophobic prejudice in the handling of his defamation claim and subsequent removal from the Roll of Solicitors.

The key issues at stake include:

• Mr. El Diwany's attempts to reopen previously dismissed appeals under CPR Part 52.30.
• Allegations of judicial bias based on perceived Islamophobic racism.
• The court's authority to impose a General Civil Restraint Order (GCRO) in response to persistent meritless litigation.

The parties involved are Mr. El Diwany and the Solicitors Regulation Authority (SRA), representing the regulatory and judicial responses to Mr. El Diwany's actions and claims.

Summary of the Judgment

The Court of Appeal faced three interconnected applications initiated by Mr. El Diwany:

• The SRA Application: Seeking to reopen the refusal to permit appeal against the Saini J's order striking him off the Roll of Solicitors.
• The Defamation Application: Attempting to reopen the dismissal of his defamation claim against Norwegian parties.
• The Amendment Application: Aimed at modifying the SRA Application.

Mr. El Diwany's overarching argument centered on alleged bias and racism influencing previous judicial decisions. He portrayed himself as a victim of unjust treatment by the Norwegian press and legal system, which, in his view, culminated in wrongful convictions and professional sanctions.

After thorough deliberation, the Court dismissed all three applications as totally without merit. Furthermore, recognizing Mr. El Diwany's persistent issuance of meritless claims and applications, the court imposed a General Civil Restraint Order (GCRO) for three years, effectively restricting him from making further unfounded legal attempts without prior permission.

Analysis

Precedents Cited

The judgment extensively referenced several key legal precedents to underpin its reasoning:

• Porter v. Magill [2001] UKHL 67: Established the test for apparent bias, emphasizing the perspective of a fair-minded observer.
• Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] QB 451: Clarified that an informed observer should be an ordinary, reasonably well-informed member of the public.
• Taylor v. Lawrence [2002] EWCA Civ 90: Discussed the exceptional circumstances under which appeals may be reopened.
• Municipio de Mariana v. BHP Group plc [2021] EWCA Civ 1156 and UCP plc v. Nectrus Ltd [2022] EWCA Civ 949: Provided recent interpretations of CPR Part 52.30, emphasizing the necessity for avoiding real injustice in reopening appeals.
• R (Kumar) v. Secretary of State for Constitutional Affairs [2006] EWCA Civ 990 and Chief Constable of Avon and Somerset Constabulary v. Gray [2019] EWCA Civ 1675: Guided the imposition of GCROs, focusing on protecting courts and litigants from vexatious proceedings.

These precedents collectively informed the court's approach to assessing claims of bias and the appropriateness of restraining orders against litigants who abuse the judicial process.

Legal Reasoning

The court's legal reasoning was multifaceted:

• Bias Assessment: Applying the Porter v. Magill test, the court evaluated whether a fair-minded observer would perceive a real possibility of bias. Despite Mr. El Diwany's assertions, the court found no substantive evidence indicating that judges acted with actual or apparent bias.
• CPR Part 52.30 Evaluation: Under CPR Part 52.30, the court can reopen an appeal only under exceptional circumstances to avoid real injustice. The court determined that Mr. El Diwany's applications did not meet these strict criteria, as there was no significant miscarriage of justice or corruption of the decision-making process.
• Restraint Orders Justification: Recognizing the pattern of persistent, meritless litigation by Mr. El Diwany, the court deemed a GCRO appropriate to prevent further abuse of the legal system and protect judicial resources.

Impact

This judgment has several noteworthy implications:

• Strengthening Restraint Mechanisms: By imposing a GCRO, the court reinforces the tools available to prevent abuse of the legal process by litigants who continuously pursue unfounded claims.
• Clarification on Bias Claims: The decision underscores the high evidentiary threshold required to substantiate claims of judicial bias, discouraging frivolous allegations.
• Finality of Decisions: Emphasizing the principle of finality, the court discourages attempts to incessantly reopen cases, thereby promoting judicial efficiency and respect for earlier rulings.

Complex Concepts Simplified

Conclusion

The El Diwany v Solicitors Regulation Authority case serves as a pivotal reference for the judiciary in handling litigants who persistently pursue unfounded claims and challenge judicial decisions without merit. By imposing a General Civil Restraint Order, the Court of Appeal has underscored the importance of safeguarding the integrity of the legal system against abuse and ensuring that judicial resources are allocated efficiently.

Additionally, the judgment reinforces the stringent standards required to substantiate claims of bias, thereby protecting judges from baseless allegations that could undermine their impartiality and authority. This decision not only upholds the principle of finality in judicial proceedings but also provides a clear precedent for similar future cases, balancing the rights of litigants with the necessity of maintaining an effective and respectful legal system.

In the broader legal context, this case exemplifies the courts' commitment to deterring vexatious litigation and preserving public confidence in the judiciary by ensuring that only legitimate and substantiated claims receive judicial consideration.