Litigation: restraining vexatious litigants

Vexatious litigants can be described as individuals who litigate in a manner which often leads to unnecessary harm and expense for the unfortunate opponents, and causes disruption to the justice system.

In Attorney General v Barker Bingham LJ described the characteristics of vexatious individuals:

“The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon thereby imposing on defendants the burden of resisting claim after claim; that the plaintiff relies on potentially the same cause of action … against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give any effect to orders of the court”

Bingham LJ went on to state that a vexatious proceeding is one which has little or no basis in law and its effect, whatever its intention, is to subject the defendant to inconvenience. Can anything be done to control vexatious litigants?

Restraining orders

Following the case of Grepe v Loam it is possible to obtain an order preventing a litigant from making an application without the leave of the court, failing which that application will be dismissed without being heard. These orders are one of the most effective methods of preventing litigants from pursuing their cases oppressively. It is not necessary to establish that the litigant is vexatious; it is sufficient that there is a possibility that the litigant might abuse the processes of the court (Jolly v Jay & Jay). In Ebert v Birch it was held that these orders should extend not only to the existing proceedings but should also apply to restrain specified anticipated proceedings by individuals.

Section 42 orders

In addition to the principles in Grepe, Section 42 Supreme Court Act 1981 provides for a procedure whereby the Attorney General may intervene to restrict an individual’s right to litigation. Such an application should only be made where there are grounds that justify limiting the individual’s access to the court. An assessment of the merits will take into account all the circumstances; the general nature of the litigation, the litigant’s conduct and character, the hardship caused to those on the receiving end and the likelihood of the conduct continuing in the absence of an order being made.

Human rights implications?

It is necessary to strike a balance between, on one hand, the rights of individuals to unrestricted access to justice and, on the other hand, the rights of individuals not to be subjected to vexatious proceedings, together with the need to allocate scarce court resources fairly. In Golder v UK it was held that the control of vexatious litigants was in the hands of the court, and an acceptable form of judicial proceedings. The detailed procedures of Section 42 have been held to conform to Article 6 of the European Convention on Human Rights (Tolstoy Miloslavsky v UK and the Golder case).

What more can be done?

In dealing with a vexatious litigant it is vital to appreciate the complete history of the case. Any tribunal or other individual who becomes involved should be wary of making any comments or observations without recognising how the vexatious litigant may interpret or manipulate them.

Matters involving litigants in person should be case managed by a nominated Judge. This would provide the benefit of immediate access to a Judge who should be empowered to decide all interlocutory issues, thereby limiting or eradicating the necessity for appeal.

In circumstances where a litigant has a history of regularly issuing proceedings without cause, an application could be made by an interested party to the court for a screening order so that all applications filed after a point in a specific action are automatically reviewed ex parte.

A party who is the subject of a Section 42 order should be subject to closer scrutiny by the courts if leave is granted to proceed with any application or new proceedings. For example, the court may have a discretion to grant only conditional leave to ensure there is no repetition of the litigant’s past behaviour in any new proceedings.

Conclusion

Despite the overriding objective of the Civil Procedure Rules and changes in the administration of justice, focusing on the need to minimise delay and reduce costs, vexatious litigants are still able to manipulate court processes in the obsessive pursuit of their own litigation. The number of applications made under Section 42 and the number of vexatious litigants has increased dramatically over the last ten years. The rights of both parties must be balanced.

For further details please contact Eve Nazir at [email protected] or on +44 (0)20 7367 3066.