‘When the litigant can’t take no for an answer: vexatious litigants in civil procedure.’

In this blog Professor Julia Fionda, Module Convenor for Civil and Criminal Procedure considers the law’s response to the vexatious litigant.

In the recent case of Maughan (formerly Wilmot) v Wilmot [2019] EWHC 2765 (Fam) Mostyn J, referred to the respondent to the application as an ‘exceptionally vexatious litigant.’ And ‘This is one of the worst cases of vexatious litigation misconduct that I have ever encountered.’ Statements such as these are not made lightly by the judiciary and so what tools might civil procedure have at its disposal for those litigants who just can’t take no for an answer?

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.’ (see UK government guidance on vexatious litigants ). Any formal barrier to use the courts can be seen as a limiting of access to justice for an applicant. The proportionality of these barriers has been considered by the European Court of Human Rights in Golder v UK and Tolstoy Miloslavsky v UK
where the Court recognised that individuals who have to often respond to these applications should have the right not to be unfairly harassed by litigation. It is therefore recognised that the integrity of the civil justice process would be compromised if there were no tools at its disposal to regulate those who persistently use, or in some cases abuse, the opportunity to access the process.

In Bhamjee v Forsdick and others [No 2] [2003] EWCA Civ 1113 the Court of Appeal reviewed the range of options available to the civil justice process when responding to this problem. Firstly, the civil court under CPR rule 3.3 can make an order striking out the action of its own volition. Secondly, under CPR rule 3.11 and PD 3C three types of civil restraint orders are available. A Limited Civil Restraint Order (formerly known as a Grepe v Loam order) can be made by a judge of any court where a party has made two or more unmeritorious applications. With this order a party will be restrained from making any further applications in the proceedings without first obtaining the permission of a judge identified in the order. An Extended Civil Restraint Order can be made only by a judge of the Court of Appeal, High Court or Designated Civil Judge and this order will restrict applications in the court it was made or in the lower courts associated with the same subject matter unless permission of said court judge is secured. This usually lasts for two years but can be renewed for a further two years. In the most extreme cases a General Civil Restraint Order can be ordered. This order applies to all civil applications to county courts and the High Court. It also lasts for two years but can be renewed for a further two years. If this final order is ignored by the applicant, then the person will be deemed to be in contempt of court and could receive a prison sentence.

In addition, as a third option the court can make, in response to an application by the Attorney General, a Civil Proceedings Order under s42 Senior Courts Act 1981 and declare the applicant to be a vexatious litigator. This is a person who has habitually and persistently and without any reasonable ground both instituted vexatious proceedings or made vexatious applications in any of the civil (or family) courts. This time the applicant cannot institute any further proceedings without the leave of the High Court. At the current time there are 189 individuals listed as vexatious litigants. These entries date from 1950-2019. Finally the High Court, under its inherent jurisdiction is able to take appropriate action whenever its functions as a court of justice are being abused.

Clause 40 of Magna Carta 1215 states that ‘To no one will we sell, to no one will we refuse or delay, right or justice.’ Restricting access to the courts is not a normal occurrence. However, the current range of options available are deemed proportionate in that they do not prevent access absolutely, but do require permission before access can be granted. Sometimes, even when declared vexatious, a litigant can bring a successful claim (see the case of Terence Ewing). This may prove merciful in that often it is clear that these litigants have lost perspective as to the merits of their applications which may have been triggered by some historic disappointment. It would appear that if the litigant can’t take no for an answer then the court will ensure that they have to, and some finality can be secured. In doing so the court maybe preventing not just the applicant from wasting resources but also protecting other parties from the sometimes-clear evidence of a litigant trying to use the court process as a way of controlling the actions of others (for example in Maughan (formerly Wilmot) v Wilmot [2019] EWCA 2765 (fam) when a Protection from Harassment injunction was made). This is a laudable aim by the courts and is in line with the overriding objective: to deal with cases justly and at a proportionate cost.