CA-2024-002683-B - [2025] EWCA Civ 1107

The applicant is entitled under CPR 3.3(5) to apply to set aside the limited civil restraint order. In her application notice and her written request, she asks that the order be set aside based on the fact that human rights violations were not addressed in previous decisions and a free-standing claim can be made challenging the human rights violations. In her request she sets out 8 alleged human rights violations. She concludes by saying that section 9 of the Human Rights Act 1998 states that an individual can challenge a judge’s decision in a free-standing claim and requests the limited civil restraint order be set aside to enable her to claim damages and compensation as per Article 5(5) of the Convention.

I have summarised the oral submissions made by Ms Smalling-Small at the hearing on 13 August 2025 in paragraph 2 above. The purpose behind the application was said to be to set aside the limited civil restraint in order to be able to defend the charges made against her against her in 2004 that she had entered the United Kingdom illegally or had overstayed.

First, these appeal proceedings concern an order of Cranston J. of 29 July 2016 refusing to re-open an order of Collins J. refusing permission to apply for judicial review. Permission to appeal was refused. Two subsequent applications for permission to re-open were refused and certified as totally without merit. The first application was based again on the claim that the applicant had been granted permission to apply for judicial review, and that Cranston J. was not told that and should not have made the order he did on 29 July 2016. For the reasons explained in my earlier orders, that application was misconceived. Indeed, I understood Ms Smalling-Small to recognise in her oral submissions to the court on 13 August 2005 that it was, in effect, a mistake to go over those matters again and she should have focussed on the human rights issue. The fact of the matter is, however, that Ms Smalling-Small did make an application for permission to re-open the refusal of permission on that basis and that application was totally unmeritorious. Dealing with that unmeritorious application did require time and effort, and the allocation of limited public resources, and diverted those resources away from consideration of the cases brought by other litigants.

The second application for permission to re-open, and Ms Smalling-Small’s oral submissions at the hearing on 13 August 2025, focussed instead on human rights issues. The application and the submissions need to be analysed carefully. The basis of the second application, as it appeared from the papers submitted with that application, was that it was a complaint about unlawful judicial acts – that is, acts done by either Collins J. or Cranston J. – which it was said gave rise to a right to sue for compensation under section 9 of the Human Rights Act 1998. For the reasons given in my order of 29 July 2025 refusing the second application was totally misconceived. Any claim for damages for a judicial act which was allegedly incompatible with a Convention right would have had to be brought (1) in the High Court (2) within a year of those acts. They were not. The attempt to use section 9 as the basis of an application to re-open the refusal of permission to appeal against the order of Cranston J. was totally without merit. That again required the allocation of resources, time and effort to dealing with another unmeritorious application made by Ms Smalling-Small and diverted resources, unfairly, away from other litigants who wanted their cases dealt with.

It is clear from the oral submissions made by Ms Smalling-Small at the hearing on 13 August 2025, that her fundamental concern is different. She believes that she was wrongly treated in 2004 when immigration officers decided to remove her from the United Kingdom. She believes that they were wrong to conclude that she had entered the United Kingdom illegally or was an overstayer. She believes that her treatment at the hands of certain immigration officers and her removal from the United Kingdom in November 2004 as she graphically described it “in handcuffs like a common criminal” was deeply wrong and a breach of her human rights which are protected by the Convention.

Those beliefs, however strongly held, do not in my judgment alter matters. First, the fact is that those events occurred over 20 years ago. If Ms Smalling- Small had wished to bring a claim for damages, she would have had to do so within a year of those acts occurring and she did not. Secondly, whilst she said that she wished to be able to defend the charges against her, the fact is that she applied for permission to bring a claim for judicial review alleging that the decision to remove her was unlawful – but permission to bring that claim was refused by Collins J. It is that decision which Cranston J. refused to re-open. Permission to appeal against the decision of Cranston J. has been refused. Attempts to re-open the decision and to litigate, or more accurately, to relitigate the lawfulness of what happened to Ms Smalling-Small in 2004 are doomed to fail. Any further applications to try to raise those matters would be bound to fail.

On that basis, I have considered again whether it is right to make a limited civil restraint order. I consider that it is right to do so. The fact is that the applicant has made repeated and totally unmeritorious applications to re-open proceedings when those proceedings have been concluded. There is no further avenue open to her to re-litigate about the matters in 2004 and any further attempt to do so would be unsuccessful. Litigation about those events is now concluded. In those circumstances, the applicant is using up scarce public resources and time. That is unfair to other litigants whose cases are delayed whilst time and effort is devoted to dealing with the repeated, and totally unmeritorious, applications made by Ms Smalling-Small. I understand that she feels deeply aggrieved by what she says occurred in 2004. However, that does not justify the making of repeated and unmeritorious applications to re-open matters that have been decided against the applicant and does not justify allowing her to be able to make such applications in future.

For those reasons I refuse the application to set aside the limited civil restraint order made on 29 July 2025. That order remains in place.