Did you know that HM Courts and Tribunal Services holds a list of people classed as vexatious litigants? They are banned from starting court cases without permission!
Vexatious litigants are individuals who persistently take legal action against others in cases without any merit, who are forbidden from starting civil cases in courts without permission.
It begs the question, what do you do with a litigant who refuses to accept defeat?
What are my rights to access justice?
Access to justice is a basic principle of the rule of law. Article 6 of the European Convention on Human Rights states that everyone is entitled to a fair and public hearing to determine their civil rights. In England and Wales, the courts will therefore strive to ensure that everyone who has a legitimate claim has the opportunity to have their complaint heard in court. However, occasionally some limits have to be imposed for access to justice to work fairly for all.
Some litigants can become fixated with their cause and refuse to accept decisions made by the court. For the opposing party, this can be like fighting the mythical Hydra – no sooner has one application or set of proceedings been successfully defended, another is made! This can be costly, time-consuming, and immensely frustrating. It also places a disproportionate burden on the finite resources of the courts and judicial system.
Civil Restraint Orders
A potential solution to the problem of a perpetual litigant is a Civil Restraint Order which will restrain a party from issuing claims, or making applications, without first obtaining permission of the court. For a Civil Restraint Order to be made, the party must have repeatedly issued claims, or made applications, which are totally without merit which means that there was no rational argument that could have been raised in support of the claim or application or that it was bound to fail. The claim does not need to be abusive or made in bad faith to be totally without merit but such evidence may be helpful.
It will assist the applicant if a court has previously recorded that an application, appeal, or claim is totally without merit. When striking out a claim, application, or appeal which is considered to be totally without merit, the court is under an obligation to record the fact that it is totally without merit and at the same time consider whether it is appropriate to make a Civil Restraint Order. Where a party considers that their opponent is likely to become an obsessive litigant, reminding the court of that obligation may be sensible as a preparatory step to an application for a Civil Restraint Order.
Under the Civil Procedure Rules, and the inherent jurisdiction of the High Court to prevent an abuse of process, the court has the power to make three types of Civil Restraint Orders of increasing severity:
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Limited Civil Restraint Order (LCRO)
A LCRO prevents a party from making further applications in the proceedings in which it was made without the prior permission of the court. It will remain in effect for the duration of the proceedings. An LCRO may be made by a judge where a party has made two or more applications that are totally without merit.
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Extended Civil Restraint Order (ECRO)
As a LCRO only applies to the proceedings in which it was issued, it will often be necessary to apply for the wider ECRO. An ECRO will restrain any claims or applications made in specified courts, which “relate” to the proceedings in which the order is made, without first obtaining the permission of a judge identified in the order. The threshold requirement for an ECRO is that the party has “persistently” issued claims or made applications which are totally without merit (see Central Bridging Loans Ltd v Anwar [2020] EWHC 1745 (Ch)). Three unmeritorious claims or applications are the bare minimum required to prove persistence. Where a party repeatedly seeks to re-litigate matters that have already been decided it will be easier to establish persistence.
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General Civil Restraint Order (GCRO)
For the most obsessive litigant, a GCRO may be required which will cover all claims and applications, whether or not they are linked to the proceedings in which the order is made. Again permission is required from the judge identified in the order before any claim or application can be issued. A GCRO will only be made if the applicant can establish that the party has persistently issued claims or applications which are totally without merit, in circumstances where an ECRO will not be sufficient. A GCRO will be appropriate where a litigant has adopted a scattergun approach to litigation on a number of different grievances rather than a single topic.
Due to the draconian nature of an ECRO or GCRO, the order will only apply for a maximum of two years although the court can extend it where it considers it “appropriate to do so”. An extension is likely to be granted if, during the period of the original Civil Restraint Order, the party has taken steps indicating a willingness to persist in unmeritorious litigation. This could be multiple unsuccessful applications to the judge monitoring the Civil Restraint Order, or multiple breaches of the Civil Restraint Order.
A GCRO will generally provide a sufficient safeguard to a party to proceedings. However, as it severely restricts the fundamental civil right of access to justice, it will only be imposed where necessary to protect the right of others to be free from unfounded claims and to protect the scarce publicly funded resources of the court. In July 2020, 65 GCROs were registered on the public list maintained by HMCTS.
While a GCRO is a valuable form of protection, it should be remembered that a GCRO does not bar a litigant from bringing all claims but imposes a permission filter. Permission will not be refused to bring a claim of substance with arguable merit.
Although the power to make a Civil Restraint Order under the Civil Procedure Rules is limited to restraining proceedings in the courts, case law has established that the High Court also has power under its inherent jurisdiction to extend the application of a Civil Restraint Order to a tribunal such as the Employment Tribunal. The High Court also has the power to grant an injunction under the Senior Courts Act 1981 s.37 where it is just and convenient to do so.
Vexatious litigant orders
The downside of a GCRO (and ECRO) is that it can only be granted for a maximum period of two years at a time. With a particularly enthusiastic litigant who is undeterred by a Civil Restraint Order and has a propensity to continue with hopeless litigation, this can result in both the court and the parties having to devote substantial resources to extend the order at least every two years. In such a case, the court should be asked to refer the matter to the Attorney General so that she can consider whether it is appropriate to apply under s. 42 of the Senior Courts Act 1981 for an “all proceedings” order without limit of time preventing the person against whom it is made from instituting or carrying on proceedings without the leave of the court.
When dealing with a vexatious litigant, it is important to consider the potential remedies available. An application for a Civil Restraint Order needs to be carefully timed and supported by detailed evidence. Even where a Civil Restraint Order is considered appropriate, the court will aim to make the least restrictive order that will meet the requirements. It is therefore important to ensure that a strong case can be made before an application is issued. A premature application is likely to fail. In the meantime, however frustrating, the opposing party (and its legal team) must exhibit restraint and forbearance in the face of repeated and unwarranted attacks by a vexatious litigant.
About the author
Iain heads Beeston Shenton’s commercial litigation department.
Iain has 30 years of experience in Commercial Debt Recovery and Insolvency fields having worked in both Private Practice and Industry and has extensive experience working across all industry sectors and has particular expertise in working with Insolvency Practitioners in advising and recovering outstanding insolvent company ledgers.
Iain brings a pragmatic and commercial approach.
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