How to deal with vexatious litigants in the civil jurisdiction

Litigation is something most individuals or businesses enter as a last resort, often because there is just no other option left open to them.

The converse of this standard position is the vexatious litigant. The ‘berserker’ of the legal world – hellbent on pursuing numerous applications in a body of cases repeatedly, simultaneously or recurrently. The hallmark of a vexatious litigant is one who brings claims with little or no legal basis with the sole intention to subject the other party to inconvenience, harassment and expense.

The term ‘vexatious litigant’ lacks a formal or statutory definition. In civil proceedings, a vexatious litigant can be one who obsessively brings repeated claims, submits numerous applications and ignores orders (such as deadlines to serve documentation or which parties have to be served with the documentation) of the court.

This conduct presents serious injustice to those forced to respond or defend such claims, but also impacts the wider judicial system. Various officers and users of the court will know the pressure within the present-day judicial system after decades in ever-declining investment. Vexatious litigation serves only to exacerbate the issues and waste precious court resources.

Restraining vexatious litigants

Those opposing vexatious litigants will also face the emotional taxation that they face from the onslaught of matters instigated by the vexatious parties. Practitioners need to understand the enormous emotional cost as proceedings lengthen to span great expanses of time and create significant pressure on financial resources and ensure their clients are fully prepared for what they could be facing.

The courts have long recognised the need to restrain vexatious litigants for reasons set out by Staughton LJ in A-G v Jones [1990] 1WLR 859:

“First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; secondly the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievance, and should not be squandered on those who do not.”

The issue that many parties face is the threshold to overcome to achieve effective restraint of a vexatious litigant. Any party will have to face a number of ‘totally without merit’ applications, appeals and delays before even beginning to attempt to secure restraint of vexatious litigants.

It is important that in the circumstances a practitioner is opposing a potentially vexatious litigant, that they are aware of the potential means by which they can attempt to restraint. Before turning to specific means of restraining a vexatious litigant the court does have ‘general powers’ in their oversight of litigation.

Firstly, the court has an inherent jurisdiction to intervene and regulate the litigation process and ensure the correct administration of justice by preventing abuse of process (Grepe v Loam (1887) 37 ChD 168). This is commonly referred to as the court’s inherent jurisdiction, for example, to stay proceedings, to strike out, to vary orders, and a common law power to punish conduct which is contempt of court.

There is also a statutory power under s.42, Senior Courts Act 1981. The courts will exercise such power with care as it is considered to be more serious than a civil restraint order. In summary, there are two forms a section 42 order can take; a civil proceedings order or an all-proceedings order. In both cases a litigant will require permission of the High Court to commence proceedings.

Civil proceedings

It is also important to note that unless otherwise stated, a civil proceedings order remains in force indefinitely. The opposing party must show that the litigant has habitually and persistently and without any reasonable ground brought claims or made applications to the court. It is important to note, due to the severity of a section 42 order, the occurrence is rare and that it is commonly only used in the circumstances that a litigant is already subject to a civil restraint order. It could be considered an additional method of restraint in the circumstances other methods are ineffective.

In civil proceedings, the Civil Procedure Rules (CPR 2.3(1)) provides for three means of Civil Restraint Order:

• Limited Civil Restraint Order, which is limited to the particular proceedings in which it is made.
• Extended Civil Restraint Order, where any claim or application must first be permitted by the judge identified in the order but the order is limited to a specific group of courts.
• A General Restraint Order, where any claim or application must first be permitted by the judge identified in the order and can apply to all courts.

These are methods of restraining a litigant on finding that their claims are without any legal basis, vexatious, persistent or even obsessive in nature. Civil restraint orders are not dissimilar to section 42 orders but more specific in their operability in the proceedings that individuals may find themselves in with vexatious litigants.

For a court to make a CRO, the litigant must meet defined thresholds. A limited civil restraint order can be made once a party has made two or more applications which are ‘totally without merit.’

An extended civil restraint order is made only in the circumstances the party has persistently issued proceedings or made applications which are totally without merit. A general restraint order, being the most severe, will be made only in circumstances where the court deems that an ECRO will not be suitable.

Before applying a civil restraint order, there is the requirement that claims or applications are totally without merit. This is defined by the court to be a claim or application which is bound to fail as there is no legal or factual basis for the claim.

While the court, acting under its own initiative, is able to make a civil restraint order, a party to the litigation is able to make an application.

A party to the litigation may apply under CPR 23 specifying the specific civil restraint order which is sought and must comply with Practice Direction 3C.

The application should be made on notice and correctly pleaded with supporting evidence. It is suggested that witness statements and supporting evidence clearly evidence a full procedural history tainted by claims or applications that the court have held to be totally without merit.

It is a factor that has to be considered when advising any party to enter litigation to look at the nature of their opponent and to ensure that they understand that if they become embroiled in litigation involving vexatious litigants there is a long and winding road to cover before resolution is arrived at.

It is extremely important, when appropriate to do so, to seek to persuade the courts that an application is ‘totally without merit’ in the first instance. One must also ensure that the conduct of the vexatious party is meticulously recorded and that every court or tribunal dealing with the litigation is aware of the full history of the matter. This serves to streamline the process that has to be entered to successfully apply for a civil restraint order of any type.

Once the CRO has been granted, the named individual is placed on a Vexatious Litigant list maintained by the court service. No further litigation can be instigated, or any application be considered without a judge of the relevant seniority giving their formal approval for it to proceed. The court can also employ its inherent jurisdiction to extend a civil restraint order indefinitely.

Dealing with vexatious litigants has a cost for parties engaged in litigation that far outweighs the usual financial and emotional cost to litigation between rational parties. It is often hard to predict when such vexatious litigants will be encountered.

But those advising clients in such situations must remain strong and clarify that there are various paths that the court can take, or that they can instigate themselves, to end the traumatic vexatious litigation that they face.