Chapter 16 - Vexatious actions

 

The New Zealand experience

Statutory provisions

Section 88B of the Judicature Act 1908 provides the High Court with the power to restrain a person from bringing or continuing civil proceedings in certain circumstances. The section provides:

(1) If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any Court and that any civil proceeding instituted by him in any Court before the making of the order shall not be continued by him without such leave.

(2) Leave may be granted subject to such conditions (if any) as the Court or Judge thinks fit and shall not be granted unless the Court or Judge is satisfied that the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding.

(3) No appeal shall lie from an order granting or refusing such leave.

People against whom section 88B orders are made are commonly described as “vexatious litigants”, although that wording does not appear in the section itself. For convenience, we adopt that phrase in this Issues Paper.

While restraining someone from bringing or continuing legal proceedings is a drastic restriction of civil rights,549 the courts have held that section 88B is a justified limitation of the rights contained in section 27 of the New Zealand Bill of Rights Act 1990.550 Further, the provision does not operate as a complete bar on access to the courts – a person against whom an order has been made can still bring proceedings, but requires leave of the court to do so.

The courts have indicated that there are a number of reasons that justify restraining a vexatious litigant:551

(a)the entitlement of the defendants to protection;

(b)the need to use the limited resources of the judicial system for the resolution of genuine proceedings;

(c)perhaps even the interests of the vexatious litigant him/herself.

The combination of the detrimental effects that vexatious litigation can have on courts and individuals has been described as having a wider negative impact on society as a whole, by weakening the court’s ability to properly administer justice:552

It is not an exaggeration to say that ultimately vexatious litigation, by posing such a threat to the proper administration of justice, tends to undermine the rule of law.

The powers set out in section 88B are a measure of the last resort. As already noted, the justice system contains other disincentives to discourage litigants from bringing proceedings that have no merit or substance, including:553

(a)court fees and charges;

(b)the cost of legal representation, at least where the litigant uses a lawyer;

(c)the risk of a costs order being made against the litigant if the case is unsuccessful;

(d)the court’s power to order security for costs, requiring a litigant to pay an amount by way of security for costs to the court at the outset of the proceedings;554

(e)the power of the court to strike out pleadings that do not disclose a cause of action, or are frivolous and vexatious.555

However, these measures are not always effective. For example, cost may not deter a persistent vexatious litigant, particularly if he or she is not represented by counsel. Further, while the court’s power to strike out a pleading might bring an end to an individual case, it is only available once a pleading has been filed, by which point the resources of the court and the other party are already engaged.

Therefore, where other measures and powers have failed to discourage a litigant from bringing or continuing proceedings that are without merit, the more extreme measure of making an application under section 88B may be required.

Orders and applications under section 88B

Relatively few applications under section 88B, or its predecessor sections, have been made and there are only a handful of orders under section 88B in existence. Only two orders have been made by the High Court since December 2007. In 2001, the Court of Appeal noted that this reflected an appropriately conservative approach by successive Attorneys-General, “no doubt mindful of the fundamental constitutional importance of the right of access to the Courts.”556

There has not been a significant increase in applications for vexatious proceedings orders in New Zealand in the last five years. The Crown Law Office advises that each year it receives one or two requests for applications to be made under s88B, and that there has been no appreciable increase in such requests since 2006.

However, Crown Law considers that there is some evidence that vexatious or potentially vexatious litigants may be taking up more court time than previously, having regard to the number of proceedings in which they are or have been engaged.

There may be a number of causes for the relatively low numbers of orders made under section 88B. It may be that there are not significant numbers of problem litigants, or that applications are not made sufficiently often, or that the threshold for granting an order is too high.

Features of the New Zealand system

Applications under section 88B may only be brought by the Attorney-General or the Solicitor-General.557 In practice, it is the Solicitor-General who exercises this function.

The test for an order is whether the litigant has persistently instituted vexatious legal proceedings without reasonable grounds, in the High Court or any inferior court. It does not matter whether the proceedings are issued against the same person or different people. An order under the section may only be made when multiple proceedings have been commenced by the respondent.

The Court can only make an order under section 88B to restrain the litigant from filing or continuing any civil proceedings. Therefore, a person who is declared to be a vexatious litigant under section 88B is still able to bring private criminal proceedings.

Section 88B effectively gives the Court two options in terms of orders. The Court can either order that the litigant cannot bring any civil proceedings at all without leave, or it can make a more limited order that the litigant cannot bring any civil proceedings against a particular person or persons without leave.

There are some specific issues that arise in relation to the operation of section 88B, which we will discuss later in this chapter. In summary:

(a)Should the right to apply for an order under section 88B continue to be limited to the Attorney-General?

(b)Should orders under section 88B extend to criminal proceedings, interlocutory proceedings and/or appeals?

(c)Do the criteria for granting an order need to be revisited?

(d)How long should orders under section 88B last?

(e)Should a vexatious litigant have to get leave to appeal against the making of an order?

However, before we examine those matters, a more fundamental question arises: do we need a more nuanced system than the one which section 88B provides? Should we replace it with a graduated approach along the lines of that adopted in the United Kingdom and recommended in the state of Victoria?

Attorney-General v Jones (1990) 1 WLR 859 at 865.

Attorney-General v Hill (1993) 7 PRNZ 20 (HC) at [6]; Attorney-General v Brogden [2001] NZAR 158 (HC) at [23].

Attorney-General v Hill (1993) 7 PRNZ 20 (HC) at 26-27, citing Attorney-General v Jones (1990) 1 WLR 859 at 865 and Re Wiseman HC Auckland M672/67, 20 February 1968 and CA10/68, 28 May 1969 at 6.

Rt Hon Sir Anthony Clarke, MR “Vexatious litigants and access to justice: past, present, future” (30 June 2006) < www.judiciary.gov.uk > at [21].

Law Reform Committee, Parliament of Victoria, Australia Inquiry into vexatious litigants Parliamentary Paper no. 162, Session 2006 – 2008 < www.parliament.vic.gov.au > at [1.1.1].

High Court Rules, r 5.45.

High Court Rules, r 15.1.

Brogden v Attorney-General [2001] NZAR 809 (CA) at [20].

Section 88B only provides for applications to be brought by the Attorney-General, but pursuant to section 9A of the Constitution Act 1986, the Solicitor-General may perform a function or duty imposed, or exercise a power conferred, on the Attorney-General.