Repeat offence

Vexatious litigants have been a problem for the courts for more than a century, but there are now measures to stop the rot. By Simon Love

As long as there have been courts, there has been vexatious litigation – claims by those who, to quote Lord Phillips, “will not take ‘no’ for an answer”. Dealing with them can be an unpleasant experience for the professional indemnity lawyer, but the courts have recently developed potentially more effective ways of curtailing such activities.

One of the earliest relevant cases is Grepe v Loam (1887). The Court of Appeal held that jurisdiction existed to order a party not to make any further application in the proceedings without having obtained the court’s permission. One of the parties had made a stream of unmeritorious applications and the other parties had found it impossible to recover the costs incurred in opposing them.

More recently, in Ebert v Venvil (2000), the Court of Appeal found that jurisdiction existed to prohibit new proceedings being commenced without the court’s permission. Lord Woolf referred to “the extensive nature of the inherent jurisdiction of any court to prevent its procedure being abused”, and saw no reason why “that jurisdiction should apply only in relation to existing proceedings and not to vexatious proceedings which are manifestly threatened but not yet initiated”. However, the underlying proceedings and the proceedings for which a further order was being sought had to involve broadly the same (or a related) subject matter.

The leading recent authority is Bhamjee v Forsdick & Ors (No 2) (2004) in the Court of Appeal. Ismail Abdullah Bhamjee had issued numerous unmeritorious claims and applications against, among others, solicitors and barristers who had acted for other parties in other litigation he had brought.

The Master of the Rolls, Lord Phillips of Worth Matravers referred to “the nuisance which these activities represent for the judges, lawyers and staff of this court”, and how “the resources of the courts themselves… require protection”. The advent of the Civil Procedure Rules (CPR) had made more transparent the overriding objective of the court to deal with cases justly, which meant dealing with them expeditiously and allotting them an appropriate share of resources. This objective was, according to Lord Phillips, “thwarted… if litigants bombard the court with hopeless applications”.

Lord Phillips reviewed Grepe v Loam and renamed the order a “civil restraint order”. Such an order would be appropriate where “the litigant’s conduct has the hallmark of one who is content to indulge in a course of conduct which evidences an obsessive resort to litigation and a disregard of the need to have reasonable grounds for making an application to the court”.

The Ebert v Venvil order was renamed an “extended civil restraint order”. This would last for a maximum of two years and would be appropriate where the litigant had exhibited “persistent vexatiousness”, described as “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”.

Lord Phillips then described a new “general civil restraint order” to restrain a litigant “from commencing any action or making any application… without prior permission of the court”. This would last for a maximum of two years and should be considered where an extended civil restraint order had proved an insufficient restraint.

Lord Phillips also advised court staff and judges to seek to identify proceedings where it might be appropriate for the court to strike them out under CPR 3.3 as being devoid of merit before they were served on the other party.

An example of the use of these orders is the Court of Appeal’s decision in Perotti v Collyer-Bristow (2004), in which Reynolds Porter Chamberlain was instructed on behalf of the defendant solicitors. Angelo Perotti was unhappy with the way his uncle’s estate was being administered and issued proceedings against the administrator. At the trial, Perotti was largely unsuccessful. He brought a series of claims against the solicitors and barristers he had instructed in the original action. The action against Collyer-Bristow went to trial and the claim was dismissed in its entirety. Perotti then sought permission to appeal the dismissal from the Court of Appeal.
The Court of Appeal noted that Mr Justice Neuberger (in an earlier hearing) had considered that, in his experience of litigants-in-person, Perotti was second to none in terms of his persistence and the aggressiveness, rudeness and unreasonableness with which he conducted his applications. He had made 80 applications to the Court of Appeal since 1997. On 74 occasions he had been exempted from paying a fee. Two applications were successful. Several civil restraint orders and an extended civil restraint order had been made against him.

The court held that “unless more effectively restrained, Mr Perotti will continue to abuse the processes of this court and to waste its resources”. It therefore ordered that the extended civil restraint order be varied to the effect that any application by Perotti for permission was to be dealt with on paper alone, without any right of appeal. It also ordered that any other application by Perotti to the Court of Appeal which was not embraced by the extended civil restraint order be considered on paper, and that such a decision was to be final and not subject to any reconsideration at a hearing, so that CPR 52.4(4) would not apply. The court considered that “the nuisance posed by Mr Perotti’s litigious activities is now so extreme that the court [is] entitled to take this unusual step to protect its own processes and the interests of other litigants”.

Courts are now more welcoming of applications against vexatious litigants. The CPR have played a large part in this, with their emphasis on active case management. It is also to be hoped that the courts will be alert to potentially vexatious litigation and use their initiative where appropriate to dispose of such claims without troubling the other parties. While dealing with a vexatious litigant may rarely be enjoyable, the tools do exist to minimise disruption to defendants. Do not be afraid to use them.

Simon Love is a solicitor in the lawyers’ liability group at Reynolds Porter Chamberlain