District Judge John Mitchell looks at the criteria for justifying an application

We recently saw how courts will in future be dealing with vexatious litigants (see [2003] Gazette, 9 October, 37).

What about a non-vexatious defendant who applies to set aside judgment in default after a warrant is issued and then fails to attend the hearing? Can an order be made that no further application may be issued without the court's permission?

And what about the former tenant who repeatedly applies to suspend a warrant of possession under section 85(2) of the Housing Act 1985? The position is uncertain.

In Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113; (2003) The Times, 31 July, the Court of Appeal held that a court has an inherent power to take appropriate action whenever it sees its functions as a court of justice being abused.

Any action that restricts a litigant's right of access to the court must pursue a legitimate aim, be reasonably proportionate to the aim sought to be achieved and must not negate that right.

Therefore, in theory if there is good reason to believe that there is a risk that a litigant may make an application that is without merit, and which will prejudice the other party, a court could direct that an application may not be made without the permission of the court.

However, in the absence of a history of unmeritorious and late applications, it may be difficult to prove such grounds.

Furthermore, the order may prove ineffective.

Court staff will not have the case file at hand when the application is issued and the application may not be brought to a judge's attention until it is listed for hearing.

Under the Civil Procedure Rules 1998 (CPR) rule 3.4(2), there is the power to strike out an application brought without permission on the grounds that there had been a failure to comply with an order, but the applicant is entitled to apply for relief under rule 3.9 - and this will often require a hearing.

It may be more appropriate to seek an order that any application is to be placed immediately before a judge, who can consider whether it should be struck out under rule 3.4(2), for example, because it did not comply with rule 23.6 and provide brief reasons for the order sought, or dismiss it without a hearing under rule 23.8 because the order sought was not justified.

However, in both instances a litigant can apply for the order to be reconsidered under rules 3.9 or 23.10.

In many cases, applications, although frustrating to the other party, are not vexatious, being made by litigants in person who are legally inexperienced and who do not know the requirements of the CPR.

Departures from the normal process need to be justified and inconvenience by itself is unlikely to provide such justification.

District Judge Mitchell sits at Bow County Court