PROVISIONS REGARDING VEXATIOUS LITIGANTS SECTION 42 SENIOR COURTS ACT 1981

The big idea

The provisions for having persons declared Vexatious Litigants under section 42 of the Senior Courts Act 1898 is draconian and unwarranted.

Similar provisions are contained in the Vexatious Actions (Scotland) Act 1898 and section 32 of the Judicature (Northern Ireland) Act 1978, although there are slight differences in these provisions from the English provision.

There is no need for an application to have to be made to a High Court Judge to apply for permission to appeal to the Court of Appeal, or indeed any other court where permission to appeal is required under rules of court.

This is a double whamy and totally unnecessary, as the filter systems to weed out unmeritorious appeals by requiring permission to appeal is adequate and proportionate without first having to involve a High Court Judge in a lower tribunal.

The decision as to whether or not access to a higher court for the purposes of bringing an appeal should also be made, if necessary on the papers, by a Judge of that tribunal, and it is wrong that such access should in effect be blocked by a judge in a lower court.

In addition, where the permission of the court is required in the court of first instance to apply for say Judicial Review, it is ridiculous that preliminary leave should also have to be obtained under section 42(3) of the Senior Courts Act 1898 first, as virtually the same test is applicable.

Regarding the requirement for leave to be obtained, this is in effect no longer necessary, as the Claimant could be required to state on the Claim form whether or not any previous similar or related claims have been brought, and if so, to provide full details. If false statements are made, these can be punishable by Contempt proceedings being brought.

In addition, in a case where an obviously vexatious or incomprehensible claim has been issued, these could be referred to the District Judge or Master for striking out under the courts powers to strike out or stay actions, giving the Claimant the opportunity to make appropriate representations first.

There is also the Defendant’s right to apply to strike out a Particulars of Claim or pleading if it can be shown at an early stage that it is vexatious or an abuse of process, or to obtain summary judgment in actions where there is clearly no case to answer and no factual decisions that require determination.

Another solution, certainly in the High Court might be that all litigants in person would be required to obtain leave to bring the claim from the District Judge or Master first, with appeals against a wrongful determination with the permission of the appeal court at the appropriate level.

At present, the Vexatious Litigant Order covers the bringing of all proceedings, even if the litigation on which the order is bases only relates to certain types of proceedings or particular defendants.

This blanket ban is clearly disproportionate and a sledge-hammer to crack a nut, and the whole issue needs to be considered for appropriate reform etc.

Once an order is made, the person requires leave to bring any case, even if totally unrelated to the types of cases that were taken into account by the court in making the order in the first place.

The costs to the taxpayer of bringing such applications in the first place are also disproportionate, and alternative remedies should be considered to prevent vexatious claims and actions being able to be brought in the first place.

The original Vexatious Actions Act 1896 was only brought onto the statute book in the first place in order to protect the Archbishop of Canterbury and there were concerns expressed in Parliament at the time that this was only to protect the “great and the good”, as can be seen from the Hansard debates.

In addition, the current restrictions on the right of appeal regarding the refusal to grant leave currently in section 42(4) of the Senior Courts Act 1981 weren’t part of the original provisions, and this restriction was only brought in by a Private Members Bill in 1959 in the Supreme Court of Judicature (Amendment) Act 1959.

This cannot possibly be justified, as this has led to serious miscarriages of justice, and a judge considering whether or not to grant leave to appeal knows that his decision cannot subsequently be reviewed by a Higher court, and so has every incentive to refuse leave, even in respect of what would be arguably an arguable case that had merit.

There is also the risk that under the current system, the judge considering leave would attempt to try the case on the papers when this is wholly wrong and unconstitutional.

The whole concept of declaring a person a Vexatious Litigant is 19th Century and Victorian and is discriminatory and unduly stigmatizes the person concerned, and accordingly should have no place in a 21st Century Civil Justice system.

The provision should be repealed and if necessary where leave or the permission of the court is not already required, other safeguards should be considered that are non discriminatory and are fair.

Why does this matter?

These provisions are probably the most serious denial of Human Rights and civil liberties on the statute book and are out of date and unfit for purpose and 19th Century in conception