Vexing litigants – can courts do this?

The Supreme Court this week directed its Registrar to refuse to accept any applications challenging specified Court of Appeal and Supreme Court decisions, including any challenging that refusal. How far may courts go in regulating abuse of their processes? Does the contemporary rise of persistent litigants justify their outright prohibition?

In Creser v Creser [2016] NZSC 34, Mr Creser filed a third recall application consequent on dismissals of each his application for leave to appeal against a Court of Appeal judgment, and his two subsequent recall applications. Finding Mr Creser’s conduct to be an abuse of process, the Supreme Court directed its Registrar to refuse to accept any applications involving challenges to those decisions, its present judgment, and “any future decision of the Registrar refusing to accept such applications”.

Under s 88B of the Judicature Act 1908, on the Attorney-General’s application, the High Court has jurisdiction, if satisfied a person “persistently and without any reasonable ground instituted vexatious legal proceedings”, to prohibit that person’s bringing of civil proceedings without the Court’s leave. The Court’s power is comprehended as draconian, requiring truly extraordinary circumstances for its exercise. Comparable legislation exists in other jurisdictions – notably, in Australia and the United Kingdom.

In New Zealand (Stewart v Auckland Transport Board [1951] NZLR 576) and Australia (Commonwealth Trading Bank v Inglis (1974) 131 CLR 311), the legislation is taken as conclusive that the Court has no inherent power to prohibit the filing of further proceedings. But the Court retains inherent power to control proceedings and to prevent abuse of its processes, including by prohibiting the making of further applications in proceedings before it. Indeed, interlocutory applications are not proceedings for the purposes of s 88B (A-G v Heenan [2009] NZAR 763); neither may be appeals (A-G v Reid [2012] 3 NZLR 630).

The expression of this particular aspect of the Court’s inherent power appears to originate in Grepe v Loam (1887) 37 Ch D 168 – adverted to in both Stewart and Inglis – in which it was held the Court could prohibit further applications being made without leave in existing proceedings. In Ebert v Venvil [2000] Ch 484 (EWCA), notwithstanding the comparable legislation, the Court of Appeal considered there was no reason in principle to limit the power to existing proceedings, the key point being courts could require leave to be sought in advance. In Ebert, the Court of Appeal made an ‘extended Grepe v Loam order’, requiring leave to bring separate actions concerning the same subject matter.

In Bhamjee v Forsdick [2003] EWCA Civ 799, the court surveyed contemporary circumstances:

Litigant “A” has made 23 applications in the period since 1 January 2000. All of them have been unsuccessful, all of them have been with the benefit of fees exemption. Litigant “B” has made 28 applications, 25 unsuccessful, 3 undetermined, all with the benefit of fees exemption. Litigant “C” has made 12 applications, 11 of them unsuccessful, 1 undetermined and all 12 with the benefit of fees exemption. Litigant “D” has made 31 applications, 31 unsuccessful, 30 with the benefit of fees exemption. Litigant “E” has made 15 applications, one of them successful, 13 unsuccessful, one undetermined, all with the benefit of fees exemption. Litigant “F” has made 47 applications, one of them successful, 28 unsuccessful, 18 undetermined, with fee exemption 40 times. Litigant “G” has made 22 applications, 19 unsuccessful, three undetermined, with a fee exemption on each occasion.

[These] bring to light a very serious contemporary problem facing the dispatch of business in this court:… the express purpose… of preserving the resources of the court – and resources represented by the skilled judges and lawyers who staff the court – for cases which warrant the attention of a court of this seniority in the judicial system.

Presumably in equal part discouraged and encouraged, the EWCA surveyed the authorities to hold, so long as the very essence of a litigant’s right to access the court is not extinguished, courts may regulate their processes as they think fit, so long as the remedy is proportionate to the abuse. Accordingly, in Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113, [2004] 1 WLR 88, the court legislated for:

  • civil restraint orders (in the proceeding, after striking out pleading/dismissing all applications as devoid of merit),
  • extended civil restraint orders (of related proceedings in any court, if litigant “exhibits hallmarks of persistently vexatious behaviour”), and
  • general civil restraint orders (of any proceeding in any court, if extended civil restraint order insufficient in circumstances)—

all requiring leave to be obtained from a designated judge for further filings, and the latter two to expire after two years, with an option for their perpetuity without any right of appeal if continued applications for leave are made without merit.

In Vellisaris v Dynami [2013] VSCA 299, Australians found that approach attractive – and Inglis accordingly deficient, as Ebert illustrates – but, in deference to Inglis, limited the prohibition to prevent relitigation only.

The Law Commission’s Review of the Judicature Act 1908: Towards a new Courts Act identified problems with s 88B: it is a remedy of last resort, not accessible to parties directly; the threshold for intervention is high; it excludes interlocutory applications, and is unclear whether appeals included; and the remedy is ‘all or nothing’. The Commission’s consultation noted the judiciary agreed s 88B is inadequate, but should be retained as backstop to the United Kingdom’s tiered civil restraint orders; the bar preferred repeal of s 88B.

In preference to s 88B, the Law Commission recommended limited (in the proceeding), extended (and related proceedings), and general (any proceeding) civil restraint orders:

  • with effect up to 3 years but extendable;
  • able to be brought by court on own motion, parties, or law officers;
  • encompassing interlocutories, appeals, and criminal prosecutions as grounds for orders (but not to prevent criminal prosecutions);
  • no leave required for first appeal against civil restraint orders; and
  • applications to continue or issue proceedings may be made without notice.

The government agreed, except any extension may not exceed five years. The Judicature Modernisation Bill 2013 proposes such orders, restricting parties from commencing or continuing any proceeding without leave, if there is a multiplicity of proceedings “totally without merit”. (The multiplicity of meritless applications in a single proceeding remains at large.)

In all of these approaches to what is a growing and invidious problem – of significant detriment to the courts’, and defendants’ or respondents’, scarce and valuable resources – the common thread is the restrained party’s entitlement to seek leave to continue. The requirement for leave balances competing interests – in particular, a litigant’s rights of access to courts, described in Brogden v A-G [2001] NZAR 809 (CA) as being of ‘fundamental constitutional importance’ (but, in Reid, ‘not absolute’). See also Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.

An application for leave has potential for the same concerns as gave rise to the prohibition in the first place. With an eye for such ingenuity, the Court of Appeal in Bhamjee additionally stipulated any application for leave was to be made in writing, to be determined in writing without hearing, and optionally without any right of appeal.

The Supreme Court’s approach in Creser, simply to prohibit all further associated applications, may be a more pragmatic approach. But it is clearly aided by the court’s final appellate position, to which access is only permitted by leave at the outset. It is not an approach open to adoption by any court to which access is of right.

For those courts – even after enactment of the Judicature Modernisation Bill – the spectre of continued applications, including for leave, remains unbanished. Terminating a slew of mindless applications requires reliance on the courts’ inherent powers to control their processes, and those courts’ preparedness to recognise the countervailing interests to untrammelled access to courts. It won’t happen overnight, but it can happen (Hargreaves v The Radio Network [2013] NZHC 1679, [27]-[28]).


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