New order

first_img Comments are closed. TheCourt of Appeal has issued new guidelines to limit the time and financialdamage done to employers and defendants in vexatious litigation cases. Colin GibsonreportsEmployersoften spend considerable time and money dealing with vexatious litigants –individuals, with no legal representation, who abuse the court system in thehope of settling a personal grudge against the company. These people appeal andre-litigate repeatedly even though their claims are doomed to failure. Traditionally,the courts have done their best to give these litigants a fair hearingregardless of the hopelessness of their claims. Butthe Court of Appeal has finally run out of patience. In Bhamjee v Forstick andOthers (No 2) the Court of Appeal, having recognised the inconvenience causedto both courts and defendants by these repeat litigants, produced newguidelines to limit this damage. These guidelines were created primarily toprotect the court but will be welcomed by employers, and any other parties,dealing with vexatious litigants.Whoare vexatious litigants?Vexatiouslitigants are individuals who bring court proceedings repeatedly, or appealrepeatedly in existing proceedings, with claims based on the same facts oragainst the same people. The claim will have no chance of succeeding andvarious tribunals, courts and appeal courts will have told the litigant this onnumerous occasions. LordBingham CJ described vexatious claims as follows: “The hallmark of a vexatiousproceeding is, in my judgment, that it has little or no basis in law (or atleast no discernable basis); that, whatever the intention of the proceeding maybe, its effect is to subject the defendant to inconvenience, harassment andexpense out of all proportion to any gain likely to accrue to the claimant; andthat it involves an abuse of the process of the court.”Attackfrom a persistent serial litigant is stressful, time-consuming and expensivefor employers. Employees of the target company may spend hundreds of hoursfielding litigation and subject access requests under the Data Protection Act.These employees may even find that they are added to the litigation. Thejudiciary and court administrative staff also spend significant amounts of timedealing with serial litigants. And ironically, legal fees spent dealing withthese vexatious claims are often not recoverable as the litigant can rarelyafford to pay them. Theneed to consider all claims fairly, in the interests of justice, has madedealing with vexatious litigants difficult. But this need must be balancedagainst the desire to prevent defendants and the courts suffering majorinconvenience at the hands of serial litigants. The question is where thebalance should be struck. Before the case of Ismail Abdullah Bhamjee theadvantage appeared to fall with the vexatious litigant.TheBhamjee caseTheBhamjee case presents a classic example of the vexatious litigant. It began inDecember 1999 after a planning inspector upheld a local authority’s denial ofBhamjee’s request to use his rear yard for car washing, valeting and servicing,carpet upholstery, cleaning and the pumping out of flood water. Bhamjeemade multiple applications, involving numerous parties, in respect of thisdecision and in a separate claim against Norwich Union Insurance Company, upuntil May 2003. During this period, he paid the Court of Appeal six visits (asthe Court described the hearings).Havingexhausted his options with the planning inspector and the Norwich Union,Bhamjee went on to issue proceedings against the barristers who acted againsthim in the litigation. The proceedings were, unsurprisingly, dismissed soBhamjee paid a further visit to the Court of Appeal.Itwas after this appeal was dismissed that a three-judge Court of Appeal wasconvened to work out what could be done to stop Bhamjee and his seriallitigation attempts. At the same time, the Court of Appeal reviewed the lawconcerning vexatious litigants in general.Thecourts’ approach pre-Bhamjee Traditionally,the courts have used a combination of harsh statutory sanction and vague commonlaw remedies. The power to make a Civil Proceedings Order (CPO), under Section42 of the Supreme Court Act 1981, has always been viewed as a last resort. Themain features of a CPO are as follows:–Only the attorney-general, or someone acting on his behalf, can apply for a CPO–A CPO can only be made where the litigant has “habitually and persistently andwithout any reasonable ground” instituted “vexatious civil proceedings” or“vexatious applications”–A CPO forbids the vexatious litigant from starting or continuing any proceedingwithout the High Court’s permission–The High Court must be convinced that there are reasonable grounds for theproceedings or application and that they do not represent an abuse of processbefore permission will be granted–A CPO will last indefinitely unless given an “expiry date”–If the High Court refuses permission there is no right of appeal.TheCPO sounds like an ideal weapon for fighting the vexatious litigant. However,it has been viewed as draconian and rarely used. It should be noted that thedefendant to a vexatious proceeding cannot decide to apply for a CPO – only theattorney-general has this power.Thecourt has had an inherent power to prevent abuses of process and has developedways of doing this through case law. For example, the Grepe v Loam orderprevented the litigant from making further applications in a particular set ofexisting proceedings without first obtaining the court’s permission.Anextended version of the order could be made in more severe cases. Thisprevented the litigant from taking any step, including issuing new proceedings,in any court against a particular set of defendants or stemming from certainfacts. The courts were also free to add further conditions to these orders,where necessary. Unfortunately, the courts have been reluctant to issue theseorders.Freshimpetus neededClearly,the courts have not fully used the available measures for dealing with seriallitigants. They have generally taken the time to listen carefully to thelitigant’s claim or application before dismissing it, hoping this will give thelitigant some sort of closure.Butthe litigant will have caused both the courts and the defendant considerableinconvenience, and expense in the case of the defendant, on the way to thehearing of the claim or application. The defendant can obtain a costs order atthe hearing but these are often not worth enforcing if the litigant in questionhas no money.InBhamjee, the Court of Appeal took two significant steps forward:–The pulling together of current law by re-naming the existing range of ordersand adding a new order to the arsenal–The Court of Appeal has encouraged the courts to use these newly-named orderswithout delay and make them of their own motion where appropriate.  Thesecond point is the most important. The courts must become proactive in usingthe new range of orders to stop serial litigants clogging up the court systeminstead of allowing them to abuse the system at the expense and inconvenienceof others.Thenew range of ordersThisrange of orders is not completely new as some of them had already grown out ofcase law. But what the Court of Appeal has done in Bhamjee, is give the ordersnew names and guidelines for their use.Theorders open to the courts when dealing with a vexatious litigant are:–Striking out under CPR 3.3 and 3.4Courtstaff should refer a claim or application, which appears to be vexatious, to ajudge who can then decide whether it should be struck out as entirely withoutmerit. A national register of these strikeout orders has been suggested by theCourt of Appeal.–Civil Restraint Order (CRO)Thiswas formerly a Grepe v Loam order. A CRO may be issued by any judge, of his orher own motion, and bars the litigant from making any further applications inthe same matter without getting the court’s permission first. The CRO will lastas long as the proceedings are pending.–Extended Civil Restraint Order (E-CRO)TheE-CRO was previously known as an extended Grepe v Loam order. This orderextends the provisions of the CRO by preventing the issue of new proceedingsagainst certain defendants or with regards to a certain set of facts. This typeof order can be made at Court of Appeal, High Court or county court level andcan be made to cover the court making it and any lower court.Itis a severe order so should not be made for any longer than two years. TheCourt of Appeal’s view on the use of these orders is clear: “Because thenuisance represented by vexatious litigants is steadily increasing, we considerthat the courts should now be more willing to make extended civil restraintorders.”Forthe record, Bhamjee was made the subject of a two-year extended civil restraintorder with a civil proceedings order on the way.–General Civil Restraint Order (G-CRO) This is a completely new order that theCourt of Appeal introduced in Bhamjee. If the activities of a serial litigantare seriously draining a court’s resources, the judge can use this order tostop him or her from starting any action or making any application in thatparticular court without its permission.Theorder is not restricted to proceedings/applications against a specific group ofpeople or regarding specific facts. Again, it should not last for longer thantwo years.–No appealTheCourt of Appeal finally considered what should happen if a litigant, who issubject to an E-CRO or G-CRO, applies for permission to proceed over and overagain and is denied for the same reasons each time. Following Bhamjee, thecourt would be able to order that a decision denying permission is final andmay not be appealed.Howeffective will the new orders be?TheCourt of Appeal’s judgment in Bhamjee clarified and extended the range oforders that a court can use to deal with vexatious litigants. But, moreimportantly, the Court of Appeal has also encouraged the lower courts to makefull use of these orders.TheMaster of the Rolls has recommended that courts strike out claims they considerto be utterly misconceived without further consideration. He also recommendsthat judges bar individuals from further litigious activity, unless permissionis given, if they consider them sufficiently troublesome. The individual mayeither be barred from a certain set of proceedings or completely.Theseguidelines were produced primarily to protect the court but should also be usedby the court, and requested by defendants and their legal representatives, tosave defendants from harassment by vexatious litigants. Thegood news for employers faced with vexatious litigants is that the new orderscan be requested by the parties to an action, unlike the traditional CPO, whichcan only be requested by the attorney-general. Employersfacing these nuisance claims from disgruntled employees should ask theirlawyers if a CRO would be appropriate. Following Bhamjee, the answer is morelikely to be yes.ColinGibson is a commercial litigation lawyer at Field Fisher Waterhouse Previous Article Next Article New orderOn 1 Nov 2003 in Vexatious claims, Personnel Today Related posts:No related photos.last_img

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