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Report No. 192

According to Lord Phillips, access to justice could be limited if two conditions were satisfied:

(i) that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired;

(ii) that a restriction must pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

It was pointed out that H v. UK, (1985) 45 D&R 281 of the European Commission (already referred) upheld an order under the Vexatious Actions (Scotland) Act, 1898 restraining a vexatious litigant from bringing an action pursuant to an earlier order under the said Act.

Lord Phillips summarized the position under the following headings: (i) Protective measures Strasbourg Jurisprudence; (ii) Protective measures, Grepe v. Loam; (iii) An extended Grepe v. Loam order as passed by Neuberger J approved by the Court of Appeal in Ebert v. Vervil, 1999(3) WLR 670; (iv) Protective measures under section 42; (v) Exceptional orders in Art Gen v. Ebert, 2002(2) All ER 789; (vi) restraining the litigant from entering the Royal Courts or from interfering with the Court or its staff, and (vii) only paper procedure (i.e. no oral hearing) as in Taylor Landrena (2000) QB 528.

An extended Grepe v. Loam order (extended civil restraint order) is one as passed in Ebert v. Venvil, where the Court of Appeal restrained all such activity by the person before the Court of Appeal, or in any Division of the High Court or in any county Court. A High Court may make a similar order in respect of any Division of the High Court or County Court. At the 32Country Court level, it could be done by a designated Judge. Lord Phillips summarized the law as follows: (para 33)

"It is, therefore, well established on authority that

(i) This Court, like any Court, has an inherent jurisdiction to protect its process from abuse;

(ii) The categories of abuse will never be closed;

(iii) No litigant has any substantive right to trouble the Court with litigation which represents an abuse of its process;

(iv) So long as the very essence of a litigant's right to access the Court is not extinguished, a Court has a right to regulate its processes as it thinks fit (absent any statute or rule or practice direction to the contrary effect) as its remedies are proportionate to the identified abuse (whether it is existing or threatened);

(v) One way in which a Court may legitimately regulate its processes is by directing that the procedure be conducted in writing (rather than by giving an oral hearing). So far as the last of these matters is concerned, if a litigant persistently makes applications or institutes actions that are devoid of merit, then by his conduct, he will be disentitled to the hearing that would otherwise be available as of right. We know of no reasonable suggestion that the equivalent procedures in the House of Lords... or the European Court of Human Rights itself, are not ECHR complaint."

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