Chapter 16 - Vexatious actions

 

Graduated system of orders

United Kingdom

Civil restraint orders

In England and Wales, the Civil Procedure Rules and a supporting Practice Direction provide for a system of graduated orders to restrain vexatious litigants.558 There are three classes of order:

(a)a limited civil restraint order.

(b)an extended civil restraint order.

(c)a general civil restraint order.

Where a statement of case or application is struck out, or dismissed, and is totally without merit, the court order must specify that fact and the court must consider whether to make a civil restraint order.559  A party to a proceeding may also apply for any civil restraint order.

A limited civil restraint order may be made by a judge of any court where a party has made two or more applications that are totally without merit. The effect of the order is to restrain the party against whom it is made from making any future applications in those particular proceedings, without first obtaining the permission of a judge identified in the order.

If the party makes a further application in the proceedings without judicial permission, the application will be automatically dismissed without the judge having to make any order, or the other party needing to respond. A limited civil restraint order will remain in effect for the duration of the proceedings, unless the court otherwise orders.

The middle tier of the system provides for an extended civil restraint order to be made where a party has persistently issued claims or made applications that are totally without merit. Extended civil restraint orders may be made by a judge of the Court of Appeal, a judge of the High Court, or a designated civil judge or his appointed deputy in a County Court.

An extended civil restraint order restrains the party from issuing claims or making applications concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made, except with permission of a judge:

(a)in any court, where the order is made by a Court of Appeal judge;

(b)in the High Court or any County Court where the order is made by a High Court judge;

(c)in the County Court, where the order is made by a County Court judge.

An extended civil restraint order will be made for a specified period no greater than two years (although the duration may be extended).

The most restrictive measure, a general civil restraint order, may be made by a judge of the Court of Appeal, or the High Court, or a designated civil judge or his appointed deputy in a County Court, where the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate.

A general civil restraint order restrains a party from issuing any claim or making any application without permission of a judge:

(a)in any court, where the order is made by a Court of Appeal judge;

(b)in the High Court or any County Court where the order is made by a High Court judge

(c)in the County Court, where the order is made by a County Court judge.

Like an extended civil restraint order, the general order operates for up to two years, but may be extended.

A party who is subject to a general civil restraint order may not make an application for permission to issue a claim or make an application, or apply for amendment or discharge of the order, without first serving notice of the application on the other party.

Applications for vexatious litigant orders

In addition to the civil restraint orders found in the Civil Procedure Rules, the Attorney-General has the power under section 42 of the Senior Courts Act 1981 (UK) (previously the Supreme Court Act 1981 (UK)) to apply to the High Court for an order against a person who repeatedly makes applications to the court that are without merit. Such orders may be either for a specified period of time or indefinite, and may apply to civil proceedings, criminal proceedings or both.

Section 42 provides that the Attorney-General may apply for an order against a person who has litigated “habitually and persistently and without any reasonable ground”. Section 33 of the Employment Tribunals Act 1996 (UK) is in similar terms. The 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.560  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. Lists of vexatious litigants are publicly available on the United Kingdom Courts Services website.561

It would seem that the number of applications for orders under section 42 of the Senior Courts Act 1981 (UK) and section 33 of the Employment Tribunals Act 1996 (UK) has reduced as the jurisprudence relating to civil restraint orders develops.562 The implication is that the more draconian and inflexible vexatious litigant regime may eventually come to be redundant.

Victoria

A similar three tiered approach was recently recommended by the Law Reform Committee of the Parliament of Victoria, Australia.563 The Committee’s preferred approach was to prevent vexatious litigants wherever possible, and to manage one-off or infrequent vexatious proceedings more effectively without restricting general rights of access to justice. The Government of Victoria has not yet implemented the proposed reforms.

A graduated system for New Zealand?

One option for New Zealand is to move to a more graduated system, along the lines of the models discussed above. This might consist of three tiers of available orders:

(a)A limited order, which restrains the party from making any future applications in those particular proceedings without leave;

(b)An extended order, available in the case of persistent claims or applications, which operates in relation to any matter involving, relating to or touching upon the proceedings;

(c)A general order, available in the case of persistent claims where an extended order is not sufficient, which restrains the party from issuing any civil claim or application without leave.

The chief advantage of a graduated system is that it would allow for a more proportionate response to litigants who bring vexatious proceedings. This would not only be consistent with the protections in the New Zealand Bill of Rights Act 1990, it might also allow intervention to prevent vexatious actions at an earlier stage, rather than as a very last resort.

We expect that such a system would replace section 88B, although we note that, at least at present, the two systems sit in parallel in the United Kingdom.

Q58

Should New Zealand continue its existing approach to vexatious litigants (subject to some statutory amendments), or should it adopt a graduated approach to restraining vexatious litigants similar to that used in the United Kingdom and recommended in Victoria?

Civil Procedure Rules (UK) r 3.11 and Practice Direction 3c – Civil Restraint Orders.

Civil Procedure Rules (UK) rr 3.3(7), 3.4(6) and 23.12. Rule 52.10(6) makes similar provision where an appeal court refuses an application for permission to appeal, strikes out an appellant’s notice or dismisses an appeal.

Attorney General’s Office (UK) “Vexatious Litigants” < www.attorneygeneral.gov.uk >.

Ministry of Justice (UK) “Vexatious Litigants” < www.justice.gov.uk >.

Ministry of Justice (UK) “Vexatious Litigants” < www.justice.gov.uk >.

Law Reform Committee, Parliament of Victoria, Australia Inquiry into vexatious litigants Parliamentary Paper no. 162, Session 2006 – 2008.