Vexatious litigation

The High Court of Australia has declared only four people to be vexatious litigants in its century-old existence, as of June 2019,[5][6] whereas the Australian Federal Court system, established in 1976, has at least 49 names on its barred registry.[5]

In New South Wales, as of June 2019 there were 43 people on the New South Wales Supreme Court's vexatious litigants register.[5][7]

In Queensland, the process for having someone declared a vexatious litigant is governed by the Vexatious Proceedings Act 2005, which supplanted an earlier Act.[8] Importantly, the Act defines a vexatious proceeding to include a proceeding brought without merit or any prospect of success, with the consequence that it is not necessary to prove the existence of any improper motive in order to obtain relief under the Act. As of June 2019 there were 26 people found to be vexatious litigants.[5]

In South Australia, vexatious litigation laws were enacted in the mid-1930s with the Supreme Court Act 1935-1936, following similar laws enacted in Victoria.[9] In 2010 the Rann government acted to strengthen the ability of the courts to act against vexatious litigants by "increasing the range of courts and tribunals that can declare people as vexatious".[10] Prior to that date, few people had been banned from bringing litigation to South Australian courts – by 2005, only two people were listed as having been declared as vexatious litigants, the first in 1997 and the second declared during that year.[11][12] As of June 2019 there were 7 people found to be vexatious litigants.[5]

As of June 2019, 21 people—including convicted mass-murderer Julian Knight—had been declared vexatious litigants since the law was introduced in 1930.[5][13]

As of June 2019 there were 22 people found to be vexatious litigants in Western Australia.[5]

Under the Constitution Act, 1867, section 92(14),[14] each province is vested with the power to enact and apply laws relating to the administration of justice within its own territory.

In Canada, Section 40 of the Federal Court Act[15] and in Ontario Section 140 of the Courts of Justice Act,[16] restrict the ability to introduce or continue proceedings for those who have instituted vexatious proceedings or conducted proceedings in a vexatious manner.

In Quebec, the Code of Civil Procedure is the principal legislation that sets rules related to civil procedure. Under section 46 of the Code of Civil Procedure,[17] all judicial courts and judges in Quebec are vested with "all the powers necessary for the exercise of their jurisdiction". Furthermore, they may:

at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law.[18]

Section 46 vests a very broad power on judicial courts and judges to ensure that the administration of justice is conducted according to decorum and according to the remedial nature of justice. As the courts's decisions have shown it, the authority to declare a litigant as vexatious is directly tributary to the power conferred by section 46. Cases illustrating the application of section 46 are numerous. Among them, there are: Nguiagain v. Commission de la fonction publique,[19] in which the judge rejected the plaintiff's motion for a mandamus to enjoin his union to revise the grievance that he had filed on the grounds that the motion was groundless and abusive; De Niverville c. Descôteaux,[20] where an injunction was rendered declaring the respondent, disbarred lawyer Descôteaux, as a vexatious litigant due to the multiple unfounded and frivolous actions that he had sought against the plaintiff De Niverville; and in Fabrikant v. Corbin,[21] a motion to declare the plaintiff Valery Fabrikant as a vexatious litigant was granted to the defendant, Dr. Corbin. In all of the above cited cases, a litigant was only declared vexatious following a proceeding instated by the opposite party. Moreover, section 46's scope is limited to judicial courts and judges. Administrative tribunals are legislative creations and they can only exist and function within the limits that are imposed by law. Administrative tribunals in Quebec cannot declare a person a vexatious litigant.

As per section 90 of the Rules of Practice of the Superior Court of Québec in Civil Matters,[22] such litigants are now indexed in a registry kept by the Chief Justice in the judiciary district of Montreal. Lawyer and author Claude Duchesnay has reported in May 2003 that a document on the Quebec attorney general's intranet contains the name of 58 persons who must obtain permission prior to instating proceedings before the courts.[23]

In Ireland, a court may, of its own motion or on application, order that no proceedings, either of a certain type or at all, may be issued by a certain person without leave of that court or some other court, for a specified time, or indefinitely. Such an order is referred to in legal circles as an Isaac Wunder order after Isaac Wunder who made several claims against the Hospitals Trust claiming sweepstakes prizes, but the claims were found to be groundless and the case deemed frivolous or vexatious. He was prohibited from taking further High Court proceedings in the action without leave of the court.[24]

In New Zealand a person may be declared a vexatious litigant by a High Court Judge on the application of the Attorney-General. A vexatious litigant must then apply to a High Court Judge for leave to commence any action. A decision by the High Court whether or not to grant leave cannot be appealed.[25]

In England and Wales there are two methods to control vexatious litigants:

• Civil restraint orders (made by the courts themselves on the application or their own initiative); and
• Vexatious litigants orders (made by the High Court under section 42 of the Senior Courts Act 1981 on the application of HM Attorney-General).

His Majesty's Courts and Tribunals Service maintains a list of vexatious litigants and those subject to a civil restraint order.[26]

Courts in England and Wales have the means of escalating the sanctions against a litigant who makes applications to the court that are "totally without merit".[27] Civil restraint orders allow courts to forbid applications for court hearings without the permission of a judge. There are three types of CRO: limited, extended and general, with different scopes of application.[28] Further applications totally without merit can lead to the withdrawal of the right of appeal. Harassment of the court and court officials can lead to a penal prohibition notice, prohibiting the litigant from contacting or approaching the court without permission.[29]

Section 42 of the Senior Courts Act 1981 provides the High Court with the power to make an order restricting the ability of a person to undertake litigation without leave of the High Court. The High Court may make a civil proceedings order, a criminal proceedings order or an all proceedings order.

A person subject to a civil proceedings order may not institute or continue civil proceedings in any court (which includes tribunals of a judicial function[30]) without leave of the High Court. A person subject to a criminal proceeding order may not lay information before a justice of the peace or prefer a bill of indictment without leave of the High Court. A person subject to an all proceedings order is subject to the restriction in both a civil proceedings order and a criminal proceedings order.

Where the High Court makes an order under this section it is published in The London Gazette.

Such an order can only be made on the application of HM Attorney-General and where the High Court is satisfied that the person has habitually and persistently and without any reasonable ground—

1. instituted vexatious civil proceedings, whether in the High Court or the family court or any inferior court, and whether against the same person or against different persons; or
2. made vexatious applications in any civil proceedings, whether in the High Court or the family court or any inferior court, and whether instituted by him or another, or
3. instituted vexatious prosecutions (whether against the same person or different persons).

In relation to the civil proceedings, the High Court will only grant leave to initiate or continue the proceedings or application where it is satisfied it is not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application.

In relation to criminal proceedings, the High Court will only grant leave for the laying of an information or for an application for leave to prefer a bill of indictment where it is satisfied that the institution of the prosecution is not an abuse of the criminal process and that there are reasonable grounds for the institution of the prosecution by the applicant.

The Scottish Courts and Tribunals Service holds a published list of members of the public who have habitually and persistently instituted vexatious legal proceedings without reasonable ground, and have been declared vexatious litigants under the Vexatious Actions (Scotland) Act 1898.[31] This piece of legislation has been repealed, and replaced by incorporation into section 100 of the Courts Reform (Scotland) Act 2014.[32] Under this legislation, the Inner House of the Court of Session can make an order to prevent a person accused of vexatious litigation from raising or progressing any civil legal proceedings without permission from a judge of the Outer House of the Court of Session. Such an Order may have a specified time period, or may run indefinitely. The published list of such individuals, as of January 2021, contains eleven names.[33]

As required by California law, the Judicial Council of California maintains an online Vexatious Litigant List containing the names of several thousand individuals and companies who have been deemed vexatious. Publication of this list began in 1991 and only orders filed from 1991 to the present are included on the list.[34] Unless they are represented by an attorney, persons named on the list are prohibited from filing any new litigation in California without first obtaining permission from the presiding justice or presiding judge of the court where the filing is proposed. Under California Code of Civil Procedure § 391.7(a), any vexatious litigant who disobeys such a prefiling order may be punished for contempt of court.

Under California law[35] a vexatious litigant is someone who does any of the following, most of which require that the litigant be proceeding pro se, i.e., representing himself:

1. In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.
2. After a litigation has been finally determined[lower-alpha 1] against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
3. In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
4. Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

The threshold for "repeated" frivolous motions or litigations is quite high. "While there is no bright line rule as to what constitutes 'repeatedly', most cases affirming the vexatious litigant designation involve situations where litigants have filed dozens of motions either during the pendency of an action or relating to the same judgment."[37]

Repeated motions must be "so devoid of merit and be so frivolous that they can be described as a flagrant abuse of the system, have no reasonable probability of success, lack reasonable or probable cause or excuse, and are clearly meant to abuse the processes of the courts and to harass the adverse party than other litigants."[38] Evidence that a litigant is a frequent plaintiff or defendant alone is insufficient to support a vexatious litigant designation.[39] The moving party, in addition to demonstrating that the plaintiff is vexatious, must make an affirmative showing based on evidence that the case has little chance of prevailing on the merits. If the plaintiff is so determined, a bond may be required, and if the bond requirement is not met within a specified time period, a judgment of dismissal is ordered. A finding of vexatiousness is not an appealable order, but a dismissal for failure to post a bond requirement based on a judgment of vexatiousness is appealable.

Habeas petitions do not count towards vexatious litigant determination.[40] Vexatiousness in Probate Actions have a lower standard.[41]