Bound to fail? Restraining claims or applications which are totally without merit

The number of litigants in person is inexorably on the rise. Within that group, there are always some who lose perspective and become obsessed with their case. They may issue a barrage of claims, applications and appeals which have little merit. Professionals know to their cost that, in protecting their clients’ interests in those circumstances, the professionals themselves may also become a target. The cost of dealing with a determined litigant in person can be very significant, both financially and in terms of resources. What can you do when faced with a vexatious litigant?

A little over twenty years ago, we were involved in the case of Bhamjee v Forsdick & Ors[1], in which the Court of Appeal firmly grasped the issue of vexatious litigants, setting out the remedies available to protect the Court process from being abused and to restrain entirely unmeritorious claims and applications. Mr Bhamjee had litigated prolifically including against the five respondent barristers – with one application memorably described by the Court as not getting "within a hundred miles of identifying an important point of principle or practice or any other compelling reason why this Court should entertain [it]” – and the Court granted our firm’s application, on behalf of the barristers, for an order restraining Mr Bhamjee’s further activity in the Courts.

The problems that vexatious litigants caused the Court system referred to in that case are equally applicable today: (i) the diversion of precious resources away from cases of real merit; (ii) the economic cost of the Judges, government lawyers and Court staff who have to handle hopeless cases; and (iii) the frequent lack of financial disincentive caused by the fact that vexatious litigants may be without means to pay costs orders against them. Yet equally important is the burden on those who are the respondents to the litigant’s actions – often legal professionals whose only involvement (and ‘wrong-doing’) has been to represent a party in an underlying matter (as was the case in Bhamjee).

The remedies against such litigants – now known as Civil Restraint Orders (“CROs”) and codified in the Civil Procedure Rules – have real bite. Indeed, if a person subject to a CRO issues a further claim or makes a further application covered by a CRO without first obtaining permission, the claim or application will automatically be struck out or dismissed without the need for any further order or any response from any other party.

The CRO jurisdiction

There are three types of CROs which, in increasing order of severity, are:

• A Limited CRO (“LCRO”), which restrains a party from making any further applications in the proceedings in which the order is made, without first obtaining the permission of a judge identified in the order. An LCRO may be made where a party has made two or more applications which are totally without merit[2].
   
• An Extended CRO (“ECRO”), which restrains a party from issuing claims or making any applications concerning “any matter involving or relating to or touching upon or leading to the proceedings in which the order is made” in the Court specified in the order, without first obtaining the permission of a Judge identified in the order[3]. If the ECRO is made by a Court of Appeal Judge, the ECRO can cover any Court. If the ECRO is made by a High Court Judge, the ECRO can cover the High Court and County Court. An ECRO may be made where a party has “persistently” issued claims or made applications which are totally without merit. Persistence requires an evaluation of the party’s overall conduct, but requires a party to have made at least three claims or applications that are totally without merit[4].
   
• A General CRO (“GCRO”), which restrains a party from issuing any claims or making any application in the Courts specified in the order without first obtaining the permission of the judge identified in the order[5]. This is the most restrictive form of CRO where an ECRO would not be sufficient or appropriate.

Given the gateway requirement for any of these CROs is that the relevant party must have issued claims or made applications which are “totally without merit” - ie “bound to fail”[6] – a professional on the receiving end of a baseless claim or application should consider inviting the Court to certify it is totally without merit in order to evidence a track record of the same. Indeed, the rules state that if the Court strikes out or dismisses a statement of case or application which it considers is totally without merit then the Court must: (i) record that fact in the Court’s order; and (ii) consider whether it is appropriate to make a civil restraint order[7].

However, even where there have been the requisite number of applications certified as totally without merit, the Court will not rush to impose a CRO. The Court will consider all of the circumstances, including whether there is a risk posed by the litigant which demonstrates that they would, if unrestrained, issue further claims or make further applications which abuse the Court’s process. Notwithstanding that additional consideration, even ECROs and GCROs are not entirely rare: HM Courts & Tribunals Service publish lists of people subjected to them and, at the time of writing, there were 77 GCROs and 148 ECROs in force.

The limitations

CROs are not without their limitations, however:

• While they require the litigant to get the named Judge’s permission for further activity, the litigant may be granted permission for some or all aspects of a further claim or application to be progressed, or if permission is refused the litigant may attempt to appeal that decision.
   
• CROs are limited to a specified period of time, not exceeding three years in the case of ECROs and GCROs, although they can be extended if appropriate.
   
• CROs cover only the Courts specified in the order, so might not always be engaged – for example where a litigant applies to the Court of Appeal for permission to appeal if the CRO only covers the High Court and County Court.
   
• Unfortunately, CROs do not restrain regulatory complaints, such to the SRA or BSB, or regulatory proceedings such as before the SDT. In NMC & Anor v Harrold[8], the Court considered whether a GCRO should be extended to restrain an individual from complaining to legal regulators. Notwithstanding that the Court recognised that complaints to regulators are a serious matter for legal professionals even when baseless, and that there was force in the argument that the individual was using complaints to the regulators as a means to reargue points conclusively determined against her in legal proceedings, it did not consider that the Court was empowered to extend CROs to cover complaints to regulators. It noted, amongst other things, that it was not an established head of jurisdiction or an incremental development of one, and that there was no evidence to show that the regulators were unable to deal with vexatious complaints themselves.
• CROs cannot curtail unreasonable or oppressive correspondence that does not involve the issuing of claims or making of applications.

Our perspective

CROs are not a cure-all, but they are nevertheless a useful tool in the armoury when faced with a vexatious litigant who, in the words of Bhamjee, "won't take 'no' for an answer"".

We have found that the Courts are increasingly willing to certify applications as totally without merit and to make CROs as Judges grapple with a preponderance of unmeritorious applications that clog the Court system. Therefore, it is important for professionals’ risk teams to keep in mind the CRO jurisdiction, and to invite the Court to certify applications as totally without merit where appropriate. Two or more ‘totally without merit’ certifications (as required for an LCRO or ECRO) can be obtained in surprisingly short order where a vexatious litigant is involved.

Once a CRO is obtained, keep in mind that it is time-limited, so collate any evidence of a continuation of the vexatious conduct which might support an application to extend the CRO in due course.

If you would like to know more about how to deploy the CRO jurisdiction, please feel free to contact one of the authors.