Smalling-Small v Home Office West Midlands: Clarifying Section 9 Human Rights Act Claims and the Threshold for Limited Civil Restraint Orders

1. Introduction

In Smalling-Small v Home Office West Midlands ([2025] EWCA Civ 1107) the Court of Appeal (Civil Division) confronted a burst of litigation that had spanned more than two decades. The core application before Lewison LJ was brought under CPR 3.3(5) to set aside a limited civil restraint order (“LCRO”) previously imposed on Ms Annmarie Smalling-Small after successive attempts to re-open concluded immigration-related proceedings were certified “totally without merit” (“TWM”). Although the factual narrative reaches back to the claimant’s removal from the United Kingdom in 2004, the appeal raised three discrete issues:

1. whether the LCRO of 29 July 2025 should be revoked;
2. whether section 9 of the Human Rights Act 1998 (“HRA 1998”) furnishes a procedural gateway to re-litigate or circumvent final orders of the Administrative Court/Court of Appeal; and
3. how the courts should balance the finality of litigation with the protection of limited judicial resources when faced with repeat, self-represented applicants.

The judgment crystallises a two-part precedent:

• First, a fresh clarification of the proper forum, procedure and limitation period for section 9 HRA claims against judicial acts, emphasising that such claims cannot be mounted through CPR 52.30 “re-opening” applications in the Court of Appeal.
• Second, a restatement of the minimum conditions for imposing—and refusing to set aside—limited civil restraint orders, underscoring their role in husbanding judicial resources.

2. Summary of the Judgment

Lewison LJ refused Ms Smalling-Small’s request to set aside the LCRO. Drawing upon the Practice Direction 3C and the test in Gopee v Crown Court at Southwark [2023] EWCA Civ 881, the Court held:

1. Two applications had already been certified TWM; the pre-condition for an LCRO under PD 3C §2.1 was therefore satisfied.
2. The applicant’s renewed reliance on section 9 HRA 1998 was procedurally and substantively misconceived: any free-standing damages claim for an allegedly unlawful “judicial act” had to be (a) filed in the High Court, (b) within the one-year limitation period in s.7(5) HRA 1998.
3. Over twenty years had elapsed since the impugned immigration decisions and judicial refusals, placing any potential human-rights damages claim well out of time and beyond conceivable extension on equitable grounds.
4. Accordingly, further attempts to re-litigate the 2004 removal or to re-open the 2016 refusal of Collins J. were “doomed to fail”. The LCRO therefore remained necessary and proportionate.

3. Analysis

3.1 Precedents and Authorities Considered

• Gopee v Crown Court at Southwark [2023] EWCA Civ 881 – set out procedural fairness safeguards when contemplating civil restraint orders, notably the applicant’s right to an opportunity to be heard (para 47). Lewison LJ relied on Gopee both to convene an oral hearing and to gauge proportionality.
• CPR 52.30 – governs the extraordinary jurisdiction to “re-open” a final determination of the Court of Appeal. The Court reiterated the narrowness of the rule and emphasised that fresh evidence must be compelling and show real injustice; none was present.
• Practice Direction 3C – Civil Restraint Orders – particularly §2.1 (pre-requisites for an LCRO) and the distinction between limited, extended, and general CROs.
• Section 9 Human Rights Act 1998 – permits damages claims for incompatible judicial acts, but only in the High Court and subject to s.7(5) one-year limitation.
• Article 6, Article 5(5) European Convention on Human Rights – relied upon by the applicant but held to be time-barred and procedurally mis-directed.

3.2 Legal Reasoning

1. Jurisdictional Boundaries: The Court of Appeal cannot entertain a fresh damages claim under s.9 HRA. Its jurisdiction in the present proceedings was limited to appeals (or re-openings under CPR 52.30) from orders of lower courts. Any s.9 claim must commence by claim form in the High Court.
2. Limitation: Section 7(5) HRA imposes a one-year time bar. No application to extend that period was made, and even if it were, a 20-year delay is insurmountable absent wholly exceptional circumstances.
3. Finality of Litigation: CPR 52.30 embodies the principle of finality. A party cannot relitigate issues already decided or that could have been raised earlier. The applicant’s insistence that she had been granted permission for judicial review on 8 June 2004 had been dismissed on the evidence twice previously; that finding was final.
4. Threshold for Civil Restraint Orders: Under PD 3C, two TWM applications suffice. The Court highlighted the systemic cost of processing meritless filings and the concomitant unfairness to other litigants—a public-interest rationale justifying the LCRO.
5. Proportionality & Access to Justice: Referring back to Gopee, Lewison LJ considered whether a narrower measure would suffice. He concluded that an LCRO (the mildest form) already struck the correct balance between deterring abusive litigation and preserving the applicant’s residual right to seek permission for genuinely arguable applications.

3.3 Practical Impact

• Section 9 HRA route reaffirmed as exceptional: Practitioners must bring s.9 claims promptly in the High Court. Attempting to lever them into appellate re-opening procedures is now explicitly foreclosed.
• Litigation economy: The judgment is an unambiguous reminder that courts will protect their docket from repeat, meritless filings—even where litigants act in person and assert human-rights grievances.
• Guidance for immigration-linked human-rights claims: Persons removed or detained more than a year previously face formidable (often insuperable) limitation hurdles; strategic advice must address timeliness at the outset.
• Increased use of LCROs: The case equips judges with a clear precedent for imposing restraint orders after two TWM certifications, while confirming that the applicant must first be offered an opportunity to be heard.

4. Complex Concepts Simplified

Civil Restraint Order (CRO)

A court order restricting a person from issuing further claims or applications without prior judicial permission. There are three tiers: Limited (LCRO) – tied to a specific set of proceedings; Extended (ECRO); and General (GCRO) – the most restrictive.

Totally Without Merit (TWM)

A formal certification that an application has no prospect of success. Two TWM certifications within the same proceedings empower the court to impose an LCRO.

CPR 52.30 (Re-opening)

A narrow rule allowing the Court of Appeal to re-open a final determination in exceptional circumstances—e.g., fraud, a blatant procedural irregularity, or powerful fresh evidence.

Section 9 HRA 1998

Permits a claim for damages where a judicial act is incompatible with Convention rights. Such a claim must start in the High Court and normally be lodged within one year of the act.

Limitation under s.7(5) HRA 1998

Proceedings under the HRA must be started within 12 months from the date the breach became, or ought to have become, known to the claimant, unless the court considers it equitable to extend the period.

5. Conclusion

Smalling-Small provides a concise yet robust precedent in two respects. First, it cements the principle that section 9 HRA damages claims against judicial decisions cannot be smuggled into appellate re-opening proceedings, must be issued in the correct forum, and are extinguished by delay. Second, it demonstrates the courts’ willingness to deploy LCROs swiftly once the TWM threshold is crossed, in order to shield finite judicial resources and uphold the finality of litigation.

For litigants and advisers alike, the message is stark: human-rights arguments, however passionately held, must be advanced in the proper forum, within strict time limits, and on a foundation of arguable merit. Failure to observe these fundamentals risks not only dismissal but also personal restriction through civil restraint orders.