Report No. 192
Curbs on Vexatious Litigation in United Kingdom
In England, principles based on inherent power of Court to prevent abuse of process were coupled with legislation and rules to prevent frivolous and vexatious litigation. We shall refer to these developments and the recent case law on the subject wherein in some cases, after passing various restraint orders, the Court felt compelled even to restrict the litigant from entering the Royal Courts of Justice, under its inherent powers. The various steps which can finally lead to such orders, if need be, have to be carefully examined because the 'right to access' to courts is today recognized as a basic right. (See Ch. II of 189th Report).
1. The Grepe v. Loam Order, (1879): Leave of Court for future applications The first step the Courts took under inherent powers goes back to 1879. An important principle was laid down in Grepe v. Loam: (1879) 39 Ch. D. 168 and is still followed even now in the United Kingdom in recent cases. The head note in the above case reads thus:
"Repeated frivolous applications for the purpose of impeaching a judgment having been made by the same parties, the Court of Appeals made an order prohibiting any further application without leave of the Court."
In that case the first of the actions resulted in a judgment dated 5th July 1879; the second action relating to the same property resulted in a judgment dated 6th June, 1882. Notice of appeal against this judgment was given by the infant defendants in 1883. The appeal was abandoned and by order dated 9th April, 1884, the costs of respondents were ordered to be paid by the next friend of appellants.
Thereafter in Nov. 1885, April 1886, June and July 1887, various applications were made, some to the trial court and some to the appellate court, seeking the setting aside of the judgment dated 6th June, 1882. All were dismissed with costs.
A fresh case was started on 27th Oct. 1887 to "arrest the minutes of judgment in the second case". Lindley LJ after stating that he had recollection of a special type of order made in such cases earlier, passed the following order - which today is known as Grepe v. Loam order:
"That the said applicants or any of them be not allowed to make any further applications in these actions or either of them to this Court or to the Court below without leave of this Court being first obtained. And if notice of any such applications shall be given without such leave being obtained, the Respondents shall not be required to appear upon such applications, and it shall be dismissed without being heard."
2. Inherent powers: The Supreme Court Practice (UK)in its commentary under Order 18 Rule 19 refers to "inherent power" of Courts to stay or dismiss actions which are frivolous or vexatious. It states: (page 346)
"Apart from the rule, the Court has an inherent jurisdiction to stay or dismiss actions, and to strike out pleadings which are vexatious or frivolous, or in any way an abuse of the process of the Court, under which it could deal with all the cases included in this Rule Reichel v. Magrath, (1889) 14. App.Cas 665." Gleeson v. J. Wippall & Co. Ltd., 1977(1) WLR 510. It can stay or dismiss actions, before the hearing, which it holds to be frivolous or vexatious: Metropolitan Bank v. Pooley, (1885) 10 App les 210. This jurisdiction is not diminished by Order 18 Rule 19.
3. (UK) Order 18 Rule 19 (R.S.C.): Striking off frivolous or vexatious pleadings. An order to strike off frivolous or vexatious pleadings can also be passed where pleadings contain such pleas. The relevant provision in UK is as follows:
"Order 18 Rule 19 (1):- The Court may, at any stage of the proceedings, order to be struck out or amended any pleading or the endorsement of any writ in the actions, or anything in any pleading or in the endorsement, on the ground that -
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court; and may order the actions to be stayed or dismissed or judgment to be entered accordingly, as the case may be."
(2) No evidence shall be admissible on an application under para (1)(a)
(3) New Civil Procedure Rule 24.2 provides that the Court may give summary judgment in favour of the defendant if it considers that 'the claimant has no real prospect of succeeding in the claim'.
There is considerable case law in UK under this Rule but we shall refer to a few of them relevant for the subject of 'frivolous and vexatious' actions.
The expression 'frivolous or vexatious' means cases which are 'obviously' frivolous or vexatious Att. Gen of Duchy of Lancaster v. L & N W Rly, (1892)3 Ch 274 (277). The expression includes proceedings which are an abuse of the process: Ashmore v. British Local Corp, (1990)(2) All ER 981 (CA).