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Published 3 August 2020
A vexatious litigant who refuses to accept defeat may place both a financial and emotional burden on the person they are litigating against. In this article, we look at how to protect litigants from vexatious proceedings against them and, at the same time, safeguard the finite resources of the court by obtaining a Civil Restraint Order.
Access to justice is a basic principle of the rule of law; Article 6 of the European Convention on Human Rights provides 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, particularly litigants in person, 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 than 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.
A potential solution to the problem of a perpetual litigant is a Civil Restraint Order (CRO) which will restrain a party from issuing claims, or making applications, without first obtaining permission of the court. For a CRO to be made, the party must have repeatedly issued claims, or made applications, which are “totally without merit” (TWM). TWM 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 TWM but such evidence may be helpful.
It will assist the applicant if a court has previously recorded that an application, appeal or claim is TWM. When striking out a claim, application or appeal which is considered to be TWM, the court is under an obligation to record the fact that it is TWM (and at the same time consider whether it is appropriate to make a CRO). 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 CRO.
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 CROs of increasing severity:
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 CRO, the party has taken steps indicating a willingness to persist in unmeritorious litigation. This could be multiple unsuccessful applications to the judge monitoring the CRO, or multiple breaches of the CRO.
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 CRO 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 CRO 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.
Despite these wide powers, a determined obsessive litigant can still cause difficulties for their opponent by circumventing the terms of the CRO. One recent example of “litigating by alternative means”, was by attacking the opponent’s legal team (see Nursing & Midwifery Council & Other –v- Alvida Harrold  EWHC 1108 (QB)). In this case, complaints were made to the Bar Standards Board and the Solicitors Regulation Authority in respect of alleged misconduct by counsel and solicitors, respectively. Complaints were similarly made to the head of chambers and the managing partner of the firm of solicitors. These meritless complaints placed a real burden on the professionals and were clearly intended to vex and harass the opponent. Unfortunately, despite acknowledging that these complaints were a serious matter for any legal professional, the High Court rejected the submission that the inherent jurisdiction of the court or s.37 should be used to expand the scope of a GCRO to include complaints made about parties’ legal advisors to their professional regulators. It was considered that the relevant legal regulators were capable of dealing with vexatious complaints themselves.
The downside of a GCRO (and ECRO) is that is can only be granted for a maximum period of two years at a time. With a particularly enthusiastic litigant who is undeterred by a CRO 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 CRO needs to be carefully timed and supported by detailed evidence. Even where a CRO 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.
If you would like to find out more about dealing with vexatious litigants or obtaining Civil Restraint Orders please contact a member of our Commercial Dispute Resolution team.
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