Vexatious Litigants

Almost everyone plays by the rules. There are, to be sure, aggressive lawyers and occasionally self-represented persons who abuse the system. But, what should courts do with the truly vexatious litigant?  The problem of vexatious litigants is one that many courts in many nations are struggling with:

In Morrow v. Attorney General For Northern Ireland [2015] NICA 69 (21 December 2015), the following order was issued in relation to Mr. Morrow:

(i) That no legal proceedings shall without the leave of the High Court be instituted by the appellant in any court or tribunal;

(ii) That any legal proceedings instituted by the appellant in any court or tribunal before the making of the order shall not be continued by him without such leave;

(iii) That such leave shall not be given unless the court is satisfied that the proceedings are not an abuse of the process of the court and that there is a prima facie ground for the proceedings;

(iv) That notice of the making of an order under this section shall be published in the Belfast Gazette.

Mr. Morrow appealed to the Court of Appeal, referring to the order as being “scandalous.”

The Court of Appeal noted that it “is clear that both under domestic and Strasbourg jurisprudence the court has power to regulate its own affairs to ensure that its processes are not abused.” However, the Court of Appeal indicated that such an order must ensure that (at paragraph 13)

(a) The limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (Stubbings v UK (1997) 23 EHRR 213 at para 48);and

(b) A restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aims sought to be achieved (Bhamjee v Forsdick No. 2).

The Court of Appeal held that the issuing of an order limiting a person’s access to the courts requires evidence establishing that the person who is the subject of the order:

(a) has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings.

(b) whether against the same or against a different person.

and, if so satisfied, may, after hearing the person or giving him an opportunity to be heard, make the order.

The Court of Appeal also indicated that the “following factors ought to be considered by the decision-maker” (at paragraph 14):

(a) The citizen begins with a prima facie right to invoke the jurisdiction of the civil courts. See Barker at para. [2].

(b) There is a countervailing need to provide members of the public with a measure of protection against abusive and ill-founded claims. Again see Barker at paragraph [2].

(c) The need to prevent scarce and valuable judicial resources being extravagantly wasted on barren and misconceived litigation to the detriment of other litigants with real cases to try. (AG v Ebert [2002] 2 All ER 789 DC at 793f).

Applying these principles to this case, Mr. Morrow’s appeal was dismissed.  The Court of Appeal concluded that the order issued could not be “faulted” (at paragraphs 14 and 15):

The judge expressly adverted to all these factors and this court considers that his conclusion from them in the exercise of discretion that an order ought to be made in the terms sought cannot be faulted. The appellant has doggedly pursued each one of this series of hopeless cases with tiresome persistence to every judicial tier, advancing the same baseless contentions repetitively until each case had been advanced as far as he could possibly make it go. He seems impervious to the considered explanations of Masters, High Court Judges and of this court as to why his claims are manifestly ill-founded and that same inflexible approach was again plainly in evidence at the hearing before us. His apparent lack of any insight might be thought unfortunate were it not for the harm which it has done and would, we are satisfied, if uncontrolled be likely to continue to do, both to those who are made Defendants to his misguided and promiscuous litigation and to the orderly administration of justice.

For these reasons we consider that the order made by the judge has not and cannot be faulted and this appeal is accordingly dismissed.


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