District Judge John Mitchell examines new tools for dealing with the litigant in person who will not go away

Litigants in person may not understand the substantive law which applies to their case or the procedural rules by which it will be tried.

They are intimately involved and may find it difficult or impossible to accept defeat.

Unrestrained by legal advice or (if impecunious) the need to pay court fees or the likelihood of costs orders being enforced, it is unsurprising that some make multiple applications.

Others go further and start collateral litigation, suing the judge, the other party's lawyers, the Lord Chancellor or some other authority.

Courts have long recognised the effect such conduct has on other parties.

In Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113; (2003) The Times, 31 July, the Court of Appeal recently said that 'today it is also the resources of the courts themselves that require protection'.

Master of the Rolls Lord Phillips quoted the comments of Lord Justice Laws in Attorney-General v Ebert [2000] EWHC Admin 286: 'The real vice here apart from the vexing of...

opponents, is that scarce and valuable judicial resources have been extravagantly wasted on barren and misconceived litigation to the detriment of other litigants with real cases to try.'

In response to this growing problem, the Court of Appeal in Bhamjee produced a strategy to supplement the power given to the High Court by section 42 of the Supreme Court Act 1981, to declare a litigant 'vexatious'.

Under the scheme, restraining orders can be made of the court's own initiative and without involving the Attorney-General.

Abuse of process

The Court of Appeal explained that the categories of abuse of process will never be closed.

They can include the bringing of hopeless actions which have little or no discernible basis in law; wasting the time of court staff and disturbing the orderly conduct of court proceedings in an obsessive pursuit of one's own litigation; and making one unmeritorious application after another.

Whatever the intention of the litigant, the effect of this conduct is to subject the other party to inconvenience, harassment and expense out of all proportion to any gain accruing to the litigant.

Restraining such abuse does not breach a litigant's right to a fair trial under article 6 of the European Convention on Human Rights provided the limitations do not restrict or reduce the access left to the litigant in such a way, or to such an extent, that the very essence of the right is impaired and the restriction pursues a legitimate aim and, is reasonably proportionate to the aim sought to be achieved.

The High Court and the county courts have powers under the Civil Procedure Rules 1998 (CPR) to strike out, of their own initiative (CPR, rule 3.3), a statement of case that discloses no reasonable grounds for bringing or defending a claim or that is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings (CPR, rule 3.4).

A judge can also determine an application without a hearing (CPR, rule 23.8).

The Court of Appeal said that where a claim or application appears to be vexatious, the court staff should bring it to the attention of a judge to consider striking it out without a hearing.

Where a statement of case or application is struck out because it is 'totally devoid of merit', the order must record this.

If the litigant objects, an oral hearing to reconsider the order must be held (CPR rules 3.3(5) and 24.10).

In practice, at least in county courts, such applications are unlikely to be brought to a judge's attention in this way unless the litigant is notorious.

Civil restraint orders

A civil restraint order was previously known as a Grepe v Loam order.

It is likely to be appropriate when the litigant's conduct shows 'an obsessive resort to litigation and a disregard of the need to have reasonable grounds for making an application'.

Normally, an order will not be made until the litigant has made a number of applications in a single set of proceedings all of which have been dismissed because they are totally devoid of merit.

The order prohibits the issue of further applications within a single set of proceedings without the permission of a judge.

It may be made at any level of court and by any level of judge and it will normally extend to the duration of the proceedings and will identify the judge to whom an application for permission has to be made.

Where a litigant displays the hallmarks of persistent vexatiousness, an extended civil restraint order can be made.

Before an order can be made 'there has to be an element of persistence in the irrational refusal to take "no" for an order.'

The order restrains the litigant from taking any steps (including the issue of new proceedings) in any court against named parties (for example, existing parties or their representatives) in or arising from a wide range of matters defined in the order without the prior permission of a named judge.

In the High Court, the order should be made by a High Court judge who can make an order extending not just to the High Court but also the county court.

In the county court it should be made by a designated civil judge or his deputy and must be restricted to county courts within his designated area.

Orders should last for no more than two years in the first instance and applications for permission should be made in writing.

It may be necessary when a litigant's vexatious activities impose an intolerable drain on a court's resources for a general civil restraint order to be made restraining him from commencing any claim or making any action without prior permission.

The procedure and jurisdiction is the same as for an extended civil restraint order.

Vexatious litigation is a growing problem but is still comparatively rare.

The Court of Appeal in Bhamjee was careful to point out that making a civil restraint order can be justified only if it is a proportionate response to an identified abuse of the litigation process.

In many cases, other CPR remedies may be more appropriate.

Therefore, practitioners will need to exercise self-restraint to avoid making applications for such orders which lack merit or are disproportionate.

Satellite litigation is very unpopular among the judiciary.

District Judge John Mitchell sits at Bow County Court