A vexatious litigant is someone who repeatedly issues groundless claims against others. Sometimes, they have a genuine but misguided belief that their claims have merit. More often, though, they are motivated by animosity and they are often determined to waste as much of your time and money as possible. Either way, dealing with the constant barrage of claims brought by the same individual can be more than just annoying. Having to spend time, money and resources defending sham claims is stressful, draining, and all-consuming. Fortunately, the law recognises the potential severity of the issues caused by vexatious litigants and will sometimes step in to stop them.
Here, our dispute resolution solicitors explain what a vexatious litigant is and how you can spot one. They explain when the Court might declare someone a vexatious litigant and how you should deal with someone who keeps making bogus claims.
Contents:
- What is a vexatious litigant?
- How do I know if I’m dealing with a vexatious litigant?
- What are the consequences of dealing with someone who regularly makes groundless claims?
- How to stop a vexatious litigant?
- Civil Restraint Orders
- Alternatives to civil restraint orders
- What types of cases can civil restraint orders apply to?
- When will the court make a civil restraint order?
- How do I get someone declared a vexatious litigant?
- Can a civil restraint order be varied or discharged?
- What remedies are available to victims of vexatious litigation?
- Summary
What is a vexatious litigant?
There is no formal legal definition of a ‘vexatious litigant’. It is generally accepted that anyone who obsessively brings claims or makes applications with no legal basis, or someone who repeatedly ignores Court Orders, may be a vexatious litigant.
How do I know if I’m dealing with a vexatious litigant?
Access to justice is a fundamental principle of English law. Everyone is entitled to a fair hearing to determine their legal rights, even if their claim ultimately fails. So, someone who just issues a weak case against you is not necessarily a ‘vexatious litigant’. If they start to harass and cause unnecessary expense, you may be dealing with a vexatious litigant.
If you believe you may be dealing with a vexatious litigant, speak to us as soon as possible. We will check whether the Claimant is on the list of vexatious litigants banned from issuing a claim without the Court’s permission. If they are, we will notify the Court immediately and request that the claim be struck out. If they are not on the list, the facts of your situation may be such that we can take the action detailed below to have them declared a vexatious litigant and restrained from bringing further legal action.
What are the consequences of dealing with someone who regularly makes groundless claims?
The consequences of dealing with someone who regularly makes groundless claims against you can be catastrophic for your business. You cannot simply ignore a claim that has been issued against you, since this may allow the Claimant (the person bringing the claim) to enter ‘Default Judgment’ and win their case just because you have failed to dispute it.
Litigation can be lengthy and costly, so having to be involved in it regularly for no good reason can be devastating. It diverts your attention from your business and forces you to spend money on solicitor’s fees and other legal costs rather than on pursuing your commercial goals. In worst-case scenarios, a vexatious litigant could force their target out of business by their actions.
How to stop a vexatious litigant?
Clients who seek our help with stopping a vexatious litigant are often at the end of their tether, having already been the subject of several claims brought against them by the same individual. But there are some options available that we will discuss below.
Civil Restraint Orders
A Civil Restraint Order, or CRO, is a Court Order that prohibits a person from issuing claims or making applications in Court proceedings without the Court’s permission. They allow you to prevent vexatious litigants from continuing with their campaign of harassment against you.
There are three types of CRO: A limited CRO, an extended CRO, and a general CRO. We explain each type in more detail below.
Limited CROs
A limited CRO (LCRO) prevents a party to existing litigation from making any further applications relating to the claim without the Court’s permission. The Court will only make an LCRO if the party has already made at least two applications during the proceedings that were totally without merit.
If the party subject to an LRCO makes a further application without the Court’s permission, it will be automatically dismissed. An LRCO will remain in force until the proceedings have concluded unless it is set aside or varied first.
Extended CROs
An extended CRO (ECRO) prevents an individual from issuing specific types of claims or making specific applications in a specified group of Courts. The Court will only make an ECRO if the party has repeatedly issued claims or made applications that are entirely without merit. The party must have made at least three such claims or applications before the Court will consider making an ECRO. The key consideration is whether the party is acting persistently. Someone who has made three attempts to relitigate the same point is more likely to be viewed as acting persistently than someone who has made three unrelated claims over a few years. The Judge will consider the party’s overall conduct when considering the need for an ECRO.
If the party subject to an ECRO issues a claim or makes an application that falls within the scope of the ECRO without the Court’s permission, the claim will be automatically struck out or the application automatically dismissed. The ECRO will state how long it should remain in force. The initial period cannot exceed three years, but this can be extended.
General CROs
A general CRO (GCRO) prevents a person from issuing any claim or making any application in the County Courts or the High Court, or in specified Courts. The Court will only make a GCRO if the individual has repeatedly issued claims or made applications that are entirely without merit and the circumstances indicate that an ECRO would not be enough.
If the party subject to a GCRO issues a claim or makes an application that falls within the scope of the GCRO without the Court’s permission, the claim will be automatically struck out or the application automatically dismissed. The GCRO will state how long it should remain in force. The initial period cannot exceed three years, but this can be extended.
CROs are a severe remedy, and the Court will only grant one when it is essential. You can maximise your chances of obtaining a CRO and stopping the vexatious litigant’s destructive behaviour by working with experienced dispute resolution solicitors.
Alternatives to civil restraint orders
Whilst CROs are the most commonly sought remedy for those dealing with vexatious litigants, there are several alternatives that may also assist. They are as follows:
Section 42 Orders
A ‘Section 42 Order’ is similar to a CRO in that it is a Court Order preventing an individual from issuing claims or applications. Section 42 Orders coexist with CROs but are even more draconian. A Section 42 Order can be either a ‘civil proceedings order’ or an ‘all proceedings order’. The former prohibits the individual from issuing any civil claims, and the latter any civil or criminal proceedings, without the Court’s permission. Section 42 Orders can remain in force indefinitely.
Section 42 Orders are rare. They are most often made against individuals who have previously been the subject of an ineffective CRO. You cannot apply for a Section 42 Order directly; they can only be obtained by the Attorney General. To secure one, you must lodge a notification with the Attorney General’s Office, asking them to make the requisite application. The Attorney General will require detailed information relating to the individual’s course of conduct and will generally only consider acting if the individual has issued at least six claims that were totally without merit.
If our dispute resolution solicitors consider your situation suitable for a Section 42 Order, they will explain the procedures involved and prepare and lodge all of the documentation on your behalf.
Harassment claim
Sometimes, the litigant’s conduct is part of a wider campaign of harassment. The sham legal claims may be issued alongside other oppressive behaviour, such as online trolling and unwanted, unpleasant communication. If the vexatious litigant’s behaviour makes you feel alarmed, fearful, threatened or humiliated, you may have a claim against them for harassment.
Harassment is both a civil and criminal offence. If you bring a civil claim, you will likely seek an injunction prohibiting the harasser from continuing their behaviour. If they breach the injunction, they can be prosecuted and potentially imprisoned.
Our dispute resolution solicitors can help you understand whether the other party’s conduct amounts to harassment in the legal sense. If your claim has merit, they will take all available steps to restrain the other party from continuing their harassment campaign against you.
What types of cases can civil restraint orders apply to?
CROs apply to any County Court and High Court proceedings, including commercial disputes. They can also be used in Family Court proceedings and proceedings before the Employment Tribunal.
When will the court make a civil restraint order?
CROS are a severe remedy because they restrict an individual’s access to justice. The Courts take great care to only make a CRO when absolutely necessary. Your case for needing a CRO must be robust and supported by solid evidence.
When deciding whether a CRO is justified in the circumstances and, if so, which type to make, a Judge will consider the following three key questions:
Has the individual repeatedly issued claims or made applications that were totally without merit?
Whether an individual’s claims or applications are ‘totally without merit’ is decided on a case-by-case basis. Guidance given by the Court indicates that the test will be satisfied if the claims or applications were ‘bound to fail’ in that there was no rational basis for making them.
Each time an individual you suspect of being a vexatious litigant is unsuccessful in a claim or application against you, it is vital that you ask the Court to explicitly note in the resultant Order that the claim or application was ‘totally without merit’. You can then rely on those Court Orders to support your application for a CRO.
Does the litigant’s behaviour indicate that, unless the Court restrains them, they will issue further claims or make further applications that are totally without merit?
If the answer to 1 and 2 above is ‘yes’, which type of CRO is most appropriate?
The Court will make the least intrusive type of CRO required to address the issue. The threshold for each varies to reflect the stringency of the restrictions imposed. It is easier to obtain an LCRO, which applies only to the current proceedings, than an ECRO, which prevents the individual from making a range of claims or applications in specified Courts. A GCRO will only be appropriate in circumstances where an ECRO will likely be insufficient.
It is important to note that, even if the answer to the first two questions is ‘yes’, the Court will not necessarily make a CRO. The Judge must exercise their discretion and only make one if doing so is proportionate.
How do I get someone declared a vexatious litigant?
Sometimes, the Court will make a CRO of its own volition. Often, though, it is up to you to apply for a CRO to restrain the vexatious litigant.
When applying for a CRO, you must specify which type of CRO you require and provide a draft of the proposed Order. Your Order should state that if the other party does not comply with its terms, they may be held in contempt of Court and imprisoned or fined, or their assets may be seized. Your application should set out a detailed history of the matter, giving details of the previous claims or applications that were deemed totally without merit. The earlier Court Orders should also be included. You must serve your application for a CRO on the other party to give them an opportunity to defend it.
The evidential burden for obtaining a CRO is high, and the success or failure of your application depends on the evidence presented in support. We can help you to make sure that your application is as detailed and accurate as possible to give it the best possible chance of success.
Can a civil restraint order be varied or discharged?
Yes, the party subject to a CRO can apply to have it varied or discharged. Since this requires making an application to Court, they must seek the Court’s permission first. If they don’t, their application will be automatically dismissed.
What remedies are available to victims of vexatious litigation?
A CRO is a powerful remedy against those few individuals continue to litigate at will for no good reason. Before you can obtain one, they must have repeatedly issued spurious claims or applications against you. It is crucial to ensure that each time such a claim or application is made and fails, you request that the Court explicitly state that it was totally without merit. As soon as the threshold for the number of spurious claims or applications has been reached, our dispute resolution solicitors will rely on the Court’s previous findings to issue an application for a CRO and to restrain any future litigation.
In the meantime, our dispute resolution solicitors will put the vexatious litigant on notice of your intention to apply for a CRO if their behaviour continues and to claim your costs of dealing with any claims or applications made in the meantime. Receiving correspondence from a solicitors’ firm can be enough to persuade the litigant to cease their activities and leave you in peace.
Summary
Dealing with the incessant claims and applications of a vexatious litigant is time-consuming, costly and stressful. Not only does your business suffer financially, but its reputation and standing in the market can also be negatively impacted by its ongoing involvement in Court cases, however spurious they may be. You must take decisive action to protect your business and stop the vexatious litigant in their tracks. CROs offer a convenient way of restraining individuals intent on causing you harm by abusing the Court process. They are effective since any claim or application falling within the scope of the CRO made without the Court’s permission is automatically struck out or dismissed, without you having to do anything.
CROs are not easy to obtain. You need plenty of evidence, so you need to begin planning for your application as soon as you become aware that you may be dealing with a vexatious litigant. It may be some time before you are in a position to make your application. It is vital to take expert legal advice from the outset to ensure all relevant preparatory work is carried out effectively, all documentation collated and retained, and all proceedings and applications brought against you by the individual in question properly dealt with. You will then be best placed to obtain a CRO, restrain the vexatious litigant, and move on.
