Since the year 2000, 64 individuals have been recorded as ‘vexatious litigants’ on the HM Courts & Tribunals Service’s list of individuals banned from starting court cases.
It may seem like a significantly lower number than you would expect, but for good reason: access to the courts should only be restricted if it is absolutely necessary. Access to justice is a basic legal principle and according to Article 6 of the European Convention on Human Rights, everyone should be entitled to a fair and public hearing to determine their civil rights.
That said, the right to access court is not absolute and, occasionally, it is necessary to apply limits to keep the justice system fair for everyone. In this insight, we discuss what makes a vexatious litigant and the basis on which access to the court for such a vexatious litigant may be controlled.
There is no formal legal definition of a vexatious litigant, but it is generally accepted this term applies to individuals who: (i) persistently make applications and bring claims (against one or several parties) without any merit; and (ii) ignores court orders. A vexatious litigant is often a person who will not take no for an answer, as they may have become obsessed with their cause and cannot accept court decisions.
Submitting a number of claims and applications (often relating to the same subject) that have no merit wastes court resources and time. In addition, respondents incur unnecessary costs and use resources to deal with such claims and/or applications that they could be spending on claims that have merit. It is also incredibly frustrating. But how can this issue be addressed?
A Civil Restraint Order (CRO) is a court order that prevents an individual (including a non-party who may be the driver behind the litigation) from making or issuing claims or applications for a specific duration from the date of the order. They will need permission from the court to make a claim or application during this period, or it will automatically be dismissed.
For a CRO to be granted against a party, the individual must have repeatedly issued claims or made applications which are “totally without merit”. In Wasif and another v Secretary of State for the Home Department  EWCA Civ 82, the Court of Appeal provided guidance on the meaning of ‘totally without merit’ as being “no more and no less than ‘bound to fail”. The claim will be bound to fail if there is “no rational basis on which the claim could succeed“. The claim(s) or application(s) do not need to be abusive or made in bad faith.
A CRO will need to be made in accordance with Rule 3.11 of the Civil Procedure Rules (CPR), or under section 42 of the Senior Court Act 1981. There are three types of CROs which respondents can apply for under the CPR:
Each CRO applies to a different set of circumstances.
An LCRO prevents further applications being issued or made in relation to specific proceedings without getting permission of a judge identified in the order first. It is typically granted if an individual has made two or more applications (in those specific proceedings) which are totally without merit. An LCRO can be made by a judge of any court. It will remain in place either for the duration of the proceedings it relates to, or until a date ordered by the court.
This order is not used very often in practice. However, it can be particularly useful if the underlying claim has potential merit but the numerous applications being made do not.
An ECRO prevents a party issuing or making certain claims and applications “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made” without getting the permission of a judge first.
To meet the criteria for an ECRO, the party needs to have “persistently” issued claims or made applications that are totally without merit (such as in the case of Central Bridging Loans Ltd v Anwar  EWHC 1745 (Ch)). The term ‘persistently’ has been held to mean at least three claims or applications (Courtman v Ludlam  EWHC 2067 (Ch)).
The court can take into account various factors in considering what amounts to ‘persistence’, such as the timescale in which applications or claims are made and whether the applications/claims are attempts to re-litigate matters that have already been decided.
An ECRO can be made by a judge of the Court of Appeal, a judge of the High Court or a Designated Civil Judge or their appointed deputy in the County Court. An ECRO:
The court may extend the duration of an ECRO if it considers appropriate to do so, but it cannot be extended to cover a period of more than two years.
A GCRO is not restricted to an existing claim or any related claims. As the title suggests, it is a more general order that is similar to a Vexatious Litigant Order. A GCRO is made in circumstances where an ECRO is either insufficient or inappropriate. For example, if an individual repeatedly breaches the order, such as in the case of Carroll v Kynaston  EWHC 927, an ECRO may not go far enough. It may also be appropriate if a party has issued numerous claims relating to different subject matters rather than just one.
The courts in which a GCRO can apply will depend on the judge that makes the order. If it has been made by a judge of the Court of Appeal, it can apply to any court. If a High Court judge has made the order, it will apply to both the High Court and the County Court. A GCRO can also apply to a specific County Court if the order has been made by a Designated Civil Judge or their appointed deputy.
Similar to an ECRO, a GCRO will remain in place for a period of no more than two years, but it can also be extended for a further two years. Both ECROs and GCROs are still considered to be fairly draconian measures, which is why they can only be imposed for a relatively short period of time. Nevertheless, if a litigant completely disregards the terms of the order during that time, it is likely to be extended.
A more drastic, albeit rarer, alternative is a CRO under the Senior Courts Act, which would cover all proceedings and does not have a time limit.
A CRO can be made under two circumstances:
If a court decides of its own volition that an application, appeal or claim is totally without merit (which it has an obligation to record), this ruling will assist any future applications for a CRO by a party. However, if a party believes there is a risk that a litigant may issue multiple claims (perhaps based on their history), it is always worth gently reminding the court of its obligations if there is a future application for a CRO in mind.
There are strict requirements which must be satisfied before a CRO may be granted. The courts are likely to favour making the least restrictive order. As a result, there are plenty of opportunities for individuals to defend a proposed CRO.
However, there has been a clear rise in the numbers of litigants without legal representation coming before the courts, who face having their claims struck out or dismissed because they are without merit. Now the courts have successfully transitioned to remote and telephone hearings, litigants in person can attend court without having to face District Judges. This is likely to be contributing to the increase even further.
As a result, it may be that CROs become more prominent to make sure the resources and objectives of the courts are protected and the overriding objective is upheld. In recent years, and particularly as the pandemic has progressed, the courts have become more open to applications for CROs.
It is worth bearing in mind that a CRO will not bar new claims or applications. Instead, it acts as a filter, meaning the litigant in person must seek permission first. If a claim of substance which is arguable is brought, permission is likely to be granted.
Many of our banking clients are often faced with vexatious litigants, who believe they have cause to complain to their bank for a number of reasons. We have outlined a case study which resulted in a GCRO below.
The First Claim
(A), a litigant in person and customer of the bank, brought proceedings in late 2019 against their bank (B). A complained that B did not ‘take their side’ in a dispute with third parties (C) who had accused A of fraud (the First Claim). B closed A’s accounts following a complaint by C, in line with its terms and conditions. A sought £225,000 as compensation. The First Claim was struck out and certified as totally without merit in mid-2020, on the basis that B was entitled to close the accounts.
A made an application for permission to appeal. At the end of 2020, this was refused on paper and certified as totally without merit. A then made a further application to set aside the order that refused permission to appeal. This was listed for a hearing in January 2021 where permission was refused orally and certified as totally without merit.
The Second Claim
After the First Claim had been struck out, A issued a second claim against B in relation to an entirely different set of facts. This claim alleged that cheques issued in 2014 were paid to the wrong party (the Second Claim) and A sought circa £500,000 in damages. Not only was the Second Claim time-barred, but the allegation it was based on was simply unfounded. Furthermore, during the Second Claim, A made allegations which flatly contradicted those made in the First Claim.
B made an application for summary judgment/strike out in relation to the Second Claim, which was listed in January 2021. Prior to the hearing, A made a further three applications: two identical applications to transfer the Second Claim to the Commercial Court and one seeking permission to appeal the procedural order which had listed the Second Claim for a hearing. The duplicate transfer application was struck out as an abuse of process and certified as totally without merit. In addition, the application for permission to appeal the procedural order was also certified as totally without merit. The court recorded that it was a simple case management order, so there was no basis to set it aside. A would also not be allowed to request an oral hearing to reconsider whether permission should be granted.
In January 2021, the Second Claim itself was struck out and certified as totally without merit. B sought, as a minimum, an ECRO.
By the time of the hearing of the Second Claim, it became apparent that A had actually issued multiple claims and applications against various other defendants, including other banks, conveyancing firms and estate agents. B was not the only defendant that sought a CRO against A.
As a result, the issue of whether a CRO should be made was deferred to a further hearing in January 2021. It was heard before a Judge sitting as both a High Court Judge and a Designated Civil Judge in the County Court. The hearing was listed of the court’s own motion, and it was noted that A had received a total of thirteen totally without merit markings across seven different cases.
At the hearing, A asked to adjourn the proceedings and then disconnected from the hearing. The Judge made a GCRO, which applied to all claims and applications made by A in both the High Court and County Court for two years.
B has since received an application for permission to appeal the order striking out the Second Claim, as well as an application for permission to appeal the GCRO. The second application has been struck out in view of the GCRO, as A failed to apply for permission before making the application.
As for the first, A claims that the GCRO is unlawful because it was made by the High Court, even though their claims were only brought in the County Court. A added that they were only in attendance for part of the hearing. A does not have to make any application for permission to file an appeal with an Appellant’s Notice, so the Appellant’s Notice will be considered by the Court of Appeal.
B has not incurred any costs since the making of the GCRO. However, recent events have clearly shown that A does not intend to comply with the terms of the GCRO, so further action may therefore be necessary, including in relation to the application for permission to appeal the GCRO, the costs of which will not be recoverable.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.
Contributors: Rupal Nathwani and Hannah Rowland
Business Interruption Insurance - an overview and FCA guidanceRead more
TLT appointed to Vodafone's global legal panelRead more
TLT appointed to sports and arts legal services panelRead more
TLT further expands UK-wide litigation teamRead more
The future of witness statements in the Business and Property CourtsRead more
Making a claim for Covid-19 business interruption lossesRead more
Will brokers face professional negligence surrounding business...Read more
Beyond BrexitRead more
Business interruption: Supreme Court finds in favour of policyholdersRead more
Helping you navigate your business through the risks and opportunities that Brexit will bring.Read more
The way people shop is constantly evolving, from the growth of online and the changing use of stores...Read more
The widespread disruption and closure of businesses caused by the Covid-19 pandemic and the subsequent national and local lockdowns has brought into sharp focus the question of available insurance cover for losses under...Read more
Watch our video series for information on the legal issues that are affecting the real estate sector. Each...Read more
The pandemic has had a deep and long-lasting effect on the leisure, food & drink sector, forcing operators to embrace new ways of attracting and servicing customers.Read more
The pandemic has forced the majority of the workforce into a world of remote working. As a result, our cities are evolving.Read more
Our countdown to Brexit and beyond podcast series looks at the impact for businesses on both sides of the pond of any free trade agreement between the UK and Europe and the UK and the US. ThisRead more
There's a growing demand for retailers to do more to attract the Purple Pound – the collective spending power of disabled shoppers, estimated to be worth around £274bn. We look at the opportunities, the legal issues and...Read more
Green finance is gaining speed, driven by global climate change pressures and the recognition of the vital role which sustainability plays in a resilient financial services sector.Read more