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Report No. 192

European Commission on UK Act:

Article 6 of the European Convention guarantees a right to expeditious determination of rights and obligations by an impartial and independent judicial body. Question has arisen whether a provision like sec. 42 of the Supreme Court Act 1981 is in violation of the Convention. In Golder v. United Kingdom, 1975(1) EHRR. 524, the European Commission on Human Rights observed, in the course of a general survey of the subject, that in the case of the United Kingdom, the provisions relating to curbing vexatious litigation do not violate the citizens' right to 'access to the Courts'. It said:

"Vexatious litigants in the United Kingdom are persons whom the Courts treat specially because they have abused their right to access. But, having been declared a vexatious litigant, it is open to a person to prove to the Court that he has sustainable cause of action and he will then be allowed to proceed. The control of vexatious litigants is entirely in the hands of the Courts. Such control must be considered an acceptable form of judicial proceedings."

The Commission also held in Ashingdane v. UK, (1985) 7 EHRR 528 that the right of access to courts is not absolute. In. Application 11559 of 1985, H v. UK (1985) (45 D&R 281), the applicant challenged the provisions of the vexatious Actions (Scot Law) Act, 1898. Declaring the application inadmissible, the Commission relied upon Golder and Ashingdane and on the validity of the provision requiring leave of Court, and observed (p 285):

"The vexatious litigation order did not limit the applicants' access to court completely, but provided for a review of a senior Judge of any case the applicant wished to bring. The Commission considers that such a review is not such as to deny the essence of the right of access to court, indeed some form of regulation of a access to court is necessary in the interests of the proper administration of justice and must therefore, be regarded as a legitimate aim."

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