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TitleLitigants in Person What Can Courts Do June 2014
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LITIGANTS IN PERSON:
What can Courts do?
A Special Event

18 June 2014

BACKGROUND PAPERS



Faculty of Laws

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the end of the 19th century has since been exported around the world. Today, legal behaviour judged
vexatious in England and Wales continues to be regulated by common law and statute. A person
defined as vexatious will be prevented by a court order from issuing proceedings without leave of the
court. The Attorney General has the power under s.42 of the Senior Courts Act 1981 (previously the
Supreme Court Act) to apply to the High Court for an order to restrict a person who repeatedly makes
applications to the court, which the court deems to be without merit. Once a referral has occurred, the
Treasury Solicitor will launch an investigation into the litigant’s behaviour in the courts. In determining
whether to declare a litigant vexatious or not, the court will consider a number of factors. The precise
number of proceedings required to meet the test is not specified in the legislation, but guidance from
the Treasury Solicitor suggests that normally they would expect around six separate claims to have
been commenced which have been struck out or unsuccessful before an application would be made to
the court for an order. 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. Such orders may be either for a specified period of
time or indefinite, and may apply to civil proceedings, criminal proceedings or both.

It is possible that changes to civil procedure since the Woolf reforms in 1999 have made it easier for
litigants to harry the courts with suits that have little merit. Certainly, the number of vexatious litigants
is rising rapidly as, we suspect, is the number of litigants in person. The list of those declared habitually
vexatious in the United Kingdom (published by the Ministry of Justice) currently has 190 names. The
earliest listed name was in 1955 and the most recent was in 2010, but interestingly almost one-third (58)
have been listed since 2000. In that year, in a case concerning the fallout from relationship breakdown
and contact issues, Lord Bingham defined vexatious litigation and distinguished it from habitual and
persistent litigation. He said that the hallmark of vexatious proceedings is that

“it has little or no basis in law; that whatever the intention of the proceeding, its effect is to subject the
defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue
to the claimant; and that it involves an abuse of process of the court … in a way which is significantly
different from the ordinary and proper use of the court process.”

The hallmark of persistent and habitual litigious activity, by contrast, seems to be that “the plaintiff
sues the same party repeatedly in reliance on essentially the same cause of action… automatically
challenges every adverse decision on appeal; and…refuses to take any notice of or give any effect to
orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating
when earlier litigation has been unsuccessful and when on any rational and objective assessment the
time has come to stop.”

There has been particular concern at the rise in LIPs and habitual litigants turning up in the Court of
Appeal, and this dates back at least to the mid-1990s. In 2003, the Master of the Rolls reported that
there had been a “significant increase of obsessive litigants determined to leave no procedural stone
unturned, regardless of whether they have any arguable ground of appeal. Nearly 40% of all who
apply for permission to appeal are litigants in person, of whom only one tenth can demonstrate that
they have arguable grounds of appeal. Yet each of them is entitled to an oral permission hearing. Each
hearing takes about half an hour.”

After the case of Bhamjee in 2003, involving a litigant who had made repeated applications to the court,
the Court of Appeal experimented with a new procedure for identifying and blocking permission to
appeal applications (PTA) deemed to be “Totally Without Merit” (TWM). An evaluation of the experiment
conducted over the period of one court term showed that more than two-thirds (68 per cent) of
oral PTA hearings involving LIPs were deemed to be TWM as compared with 27 per cent of cases not
involving a LIP. Some 77 per cent of paper evaluations involving LIPs were marked as TWM as compared
with only 14 per cent of paper evaluations involving represented parties. The most common cases

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involving LIPs were immigration and asylum; employment appeals; general procedure; and landlord,
tenant and possession. Those least likely to involve LIPs were personal injury, judicial review, general
commercial and professional negligence cases.

The potential drain on court and opponent’s resources is illustrated by a single case observed for the
TWM evaluation. This case involved an oral hearing of a permission to appeal application by a persistent
LIP. The Court of Appeal judge was there, solicitor for the respondent local authority was there, and
counsel for the respondent was there, all having prepared what had become voluminous paperwork.
The LIP, however, did not appear. Nonetheless, the LIP’s application was duly considered by those in the
court.

The current powers of the courts to deal with persistent unmeritorious claims and applications
were codified in 2004 and are now set out in the Civil Procedure (Amendment) Rules 2013. Part 3.11
contains the court’s power to impose one of three different types of Civil Restraint Order. A “Limited
Civil Restraint Order” stops a party who has made two or more applications that are TWM from making
further applications in the same proceedings without first obtaining permission from a specified judge.
An “Extended Civil Restraint Order” is wider and prevents further connected applications or claims from
being launched without permission. These two-year orders might be considered for someone who
has “persistently” issued TWM claims or applications. “General Civil Restraint Orders” prevent any further
applications or claims at all without permission from a judge. These orders can be imposed on someone
who
“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.”

These orders are for renewable two-year terms. The Ministry of Justice publishes the names of those
against whom General and Extended Civil Restraint Orders have been imposed. There are currently 35
general orders and 68 extended orders in force.

Cases involving persistent, habitual or vexatious litigants present genuine difficulties for the courts.
The line between legitimate pursuit of an arguable case and the inability or refusal to achieve closure
after defeat is far from clear or bright, but effective measures to manage TWM litigation need to be
pursued. In particular, work needs to be done on finding ways to identify and close down potentially
troublesome litigation at an early stage. This is an area where the collection and analysis of data relating
to repeat litigation would be of significant benefit.

The need to deal with habitual and vexatious LIPs, however, should not divert attention from the
challenge relating to the rapidly increasing category of legitimate self-representing litigants grappling
with legal problems and disputes.

Extract from Dr. Grant Lester, The Vexatious Litigant, Judicial Officers’ Bulletin, April
2005 Volume 17 No 3 http://www.aija.org.au/acag09/Papers/Lester%201.pdf

Difficult complainants may also suffer from a major psychiatric illness, most often schizophrenia. These
complainants are easily identified as they have the general signs of the illness, are aggrieved primarily
by feelings of persecution and victimisation, and the content of their complaints arises totally from their
delusional beliefs, which are often bizarre and in a constant state of flux. As a result, it is often impossible
to define, let alone resolve, their complaints. Their preexisting major psychiatric illness requires
treatment, rather than the complaint being initially addressed. Others have egocentric personalities and
are incapable of viewing any perspective other than their own. They are fearful and suspicious of others
and a grandiose sense of entitlement has them constantly over-valuing their own worth. These chronic
grumblers simply lurch from irritation to irritation ensuring that their whole life is a series of complaints.

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UCL Faculty of Laws
www. ucl.ac.uk/laws

Judicial Institute
www.ucl.ac.uk/laws/judicial-institute

Centre for Access to Justice
www.ucl.ac.uk/laws/accesstojustice

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