Mellor: Application totally without merit
The High Court has issued an extended civil restraint order (ECRO) against a businessman who has “refused to accept” that his failed £55m claim against two law firms is at an end.
Mr Justice Mellor said that, in reaching his decision, he bore in mind “the accusations of professional misconduct, fraud and dishonesty which Mr Banner has levelled against individual solicitors in his crusade, all of which have been dismissed as totally without merit”.
Derek Banner, a Swede and director of Banner Universal Motion Pictures (BUMP), had instructed Fox Williams to make claims for copyright infringement, breach of confidence and passing off against three large media companies, represented by Wiggin.
The claims related to a TV game Minute Winner, which the company argued was its creation and intellectual property, infringed by another TV game in Sweden, Minute to Win It.
Mr Justice Snowden dismissed the claims in 2016, concluding that they were not “sustainable on any basis” – estoppel also applied as a Swedish court had rejected substantially the same claim in 2014.
Mr Banner, through BUMP, then sought to sue both Fox Williams and Wiggin, and also complained to the Solicitors Regulation Authority about both firms as well as those defending them, RPC and Browne Jacobson respectively.
In April 2024, Deputy Master Linwood struck out the case as an abuse of process and totally without merit, finding Mr Banner had made “baseless allegations” against Fox Williams and Wiggin.
Mellor J refused permission to appeal on the papers, although the oral application was heard by Richard Smith J, as Mellor J was unavailable. He refused permission to appeal and certified the application as totally without merit.
Mr Banner then applied to reopen the appeal. Mr Justice Trower rejected this on the papers last July and certified that application as totally without merit too.
Mellor J recounted: “Since then, over many months Mr Banner has bombarded the court with letters and emails which make it clear that he continues to refuse to recognise the validity of the orders made by Richard Smith J and Trower J.
“Despite being told (correctly) that his appeal was at an end, Mr Banner refuses to accept this. His repeated correspondence culminated in the application which was the subject of my order of today’s date, which I have rejected as totally without merit.”
This was that Richard Smith J had lacked jurisdiction to hear and determine the application for permission to appeal, which Mellor J called “a hopeless submission”
He went on to find that the conditions for an ECRO were met. “[A] rational person would have taken ‘no’ for the answer long before reaching this point.
“The persistent issuing of claims or applications which are totally without merit is an indication… that the litigant in question is unable to view the situation rationally, instead being motivated by an overriding sense of personal injustice, regardless of the merits.
“Furthermore, a rational person might struggle to conceive of what such a litigant might attempt next, but the required objective assessment of risk must take account of what has already transpired.”
Mellor J concluded that there was a risk that Mr Banner “will seek to issue further abusive claims or applications, unless restrained”. Only an extended order against both Mr Banner and BUMP would suffice, he added.
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