Vexatious litigation
Vexatious litigation is legal action which is brought solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender.
A single action, even a frivolous one, is usually not enough to raise a litigant to the level of being declared vexatious. Rather, a pattern of frivolous legal actions is typically required to rise to the level of vexatious. Repeated and severe instances by a single lawyer or firm can result in eventual disbarment.
Some jurisdictions have a list of vexatious litigants: people who have repeatedly abused the legal system. Because lawyers could be disbarred for participating in this abuse of the legal process, vexatious litigants are often unable to retain legal counsel, and such litigants, therefore, represent themselves in court. Those on the vexatious litigant list are usually either forbidden from any further legal action or are required to obtain prior permission from a senior judge before taking any legal action. The process by which a person is added to the list varies among jurisdictions. In liberal democratic jurisdictions, declaring someone a vexatious litigant is considered to be a serious measure and rarely occurs, as judges and officials are reluctant to curtail a person's access to the courts.
These legal actions occur in some countries of the former British Empire, where the common law system still remains: Australia, Canada, Ireland, New Zealand, UK, and US, which are specified below. Civil law systems typically do not have a prohibition against vexatious litigation.
History of legislation against vexatious litigation
The concept of vexatious litigation entered into law in 1896 with the Vexatious Actions Act, enacted in England and soon extended to Scotland and Ireland. This was primarily a response to the actions of Alexander Chaffers, a solicitor who filed numerous actions against leading members of Victorian society. When costs were awarded against him, he failed to pay.The first such law outside the British Isles, the Supreme Court Act, 1927 was passed in Australia nearly thirty years later. This too was prompted by the behaviour of an individual, Rupert Millane. The first vexatious litigant law in the United States was enacted in California in 1963. By 2007 four more US states had passed similar legislation: Florida, Hawaii, Ohio, and Texas.
Laws by country
Australia
Queensland
In Queensland, the process for having someone declared a vexatious litigant is governed by the Vexatious Proceedings Act 2005, which supplanted an earlier Act. 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. there were 26 people found to be vexatious litigants.South Australia
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. 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". 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. there were 7 people found to be vexatious litigants.Statistics
, 21 people in Victoria had been declared vexatious litigants since the law was introduced in 1930.The High Court of Australia declared only four people to be vexatious litigants in its 116 years in existence as of 2019, whereas the Australian Federal Court system, established in 1976, has at least 49 names on its barred registry.
In New South Wales, as of 2019 there were 43 people on the New South Wales Supreme Court's vexatious litigants register.
there were 22 people found to be vexatious litigants in Western Australia.
Canada
Under the Constitution Act, 1867, section 92, 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
and in Ontario Section 140 of the Courts of Justice Act, restrict the ability to introduce or continue proceedings for those who have instituted vexatious proceedings or conducted proceedings in a vexatious manner.
Quebec
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, all judicial courts and judges in Quebec are vested with "all the powers necessary for the exercise of their jurisdiction". Furthermore, they may: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, 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, 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, a motion to declare the plaintiff Valery Fabrikant as a vexatious litigant was granted to the defendant, 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, 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.
India
There is not a specific law titled "Vexatious Litigation Law" in India, the concept is primarily addressed through provisions in the Civil Procedure Code and through judicial decisions. The Indian legal system empowers courts to deal with vexatious litigation through several mechanisms. One common tool is the imposition of costs on the litigant who files frivolous suits. Courts have the discretion to order costs to be paid to the opposing party as a means of discouraging such behavior. These costs can include legal fees and compensation for the wasted time and resources of the other party. Also under Section 35A of the Civil Procedure Code, courts have the authority to declare a litigant a "vexatious litigant." This declaration prohibits the person from filing any further lawsuits in a particular court without obtaining prior permission. This provision is designed to deter individuals from repeatedly abusing the legal system. Courts have the authority to dismiss frivolous cases at the preliminary stage and even initiate contempt of court proceedings against those who persistently file baseless lawsuits.Ireland
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.New Zealand
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.United Kingdom
England and Wales
In England and Wales there are two methods to control vexatious litigants:- Civil restraint orders ; and
- Vexatious litigants orders.