Vexatious Litigants

What is a vexatious litigant?

A vexatious litigant is someone who is prevented by a court order from issuing proceedings without leave of the court. Such orders may be either for a specified period of time or indefinite, and may apply to civil proceedings, criminal proceedings or both.

How does a person become a vexatious litigant?

Under section 42 of the Supreme Court Act 1981 and section 33 of the Employment Tribunals Act 1996, the Attorney General may apply for an order against a person who has litigated "habitually and persistently and without any reasonable ground". The precise number of proceedings required to meet the test is not specified in the legislation, but normal cases involve at least five or six vexatious actions. The court will take into account all the surrounding circumstances including the general character of the litigation, the degree of hardship suffered by defendants and the likelihood of the conduct continuing if an order is not obtained.

How is the Attorney informed about potential vexatious litigants?

Members of the public write to the AGO and to Treasury Solicitor's Department to ask the Attorney to apply for an order. There is no formal procedure for such complaints. Treasury Solicitor's Department then undertakes an investigation into the conduct of the individual concerned, in accordance with an agreement between the AGO and the Treasury Solicitor as to the appropriate steps and the time limits within which those steps should be completed. The opinion of Counsel is normally obtained before seeking the authorisation of the Law Officers.

What happens after an order is made?

Lists are prepared of persons against whom section 42 orders have been made and these are circulated to court offices, so the system is largely self policing. The list is also available on the Court Service website. Occasionally, individuals subject to an order succeed in issuing cases without leave of the court. In these cases, the Attorney General must decide whether to bring contempt of court proceedings.

What is the Attorney General doing to resolve the problem?

The Attorney places a high priority on protecting members of the public and employees of the court service from abuse and harassment at the hands of vexatious litigants, and on preventing the obstruction of the court system. He maintains an ongoing dialogue with relevant members of the High Court judiciary, the President of the Employment Appeal Tribunal and the Department for Constitutional Affairs to ensure a joined up approach in this area with new strategies constantly being considered.

Is there any other way to stop vexatious behaviour?

Recently, the number of applications for orders under section 42 or section 33 has been reduced, largely as a result of the developing jurisdiction in relation to civil restraint orders ("CRO"s). CROs last for two years only and are more variable in scope than section 42 or section 33 orders. A court does not have to make a CRO before making a section 42 order, and in making a CRO, a court must consider whether it gives sufficient protection to the public. The Civil Proceedings Rules now require a court to make a record where any application is considered to be totally without merit. At the same time, the court must consider whether to make a CRO.