When enough is enough - can vexatious litigants be stopped?

  • Insight

04 July 2019

People who feel they have been wronged often have an understandable want to get their ‘Day in Court’. 

For most, the decision of the Judge, or sometimes the Appeal Judge, brings matters to a close even if the result is not in their favour. There are occasions, however, where an unsuccessful litigant raises numerous actions in relation to the same grievance, taking up a significant amount of court time and resource. Such behaviour is often incredibly frustrating for the defender, can amount to an abuse of the judicial process and can render the person a vexatious litigant.

What is a Vexatious Litigant?

The concept of vexatious litigation is a longstanding one, there having been legislation in this area since 1898. Under the current regime, the Lord Advocate can apply, under Chapter 6 of the Court Reform (Scotland) Act 2014, to the Inner House of the Court of Session to grant a vexatious litigant order. The Court can grant an order in circumstances where it is satisfied that the person ‘…has habitually and persistently, without any reasonable ground for doing so instituted vexatious civil proceedings, or made vexatious applications to the court in the course of civil proceedings (whether or not instituted by the person).’  [Section 101(1) of the 2014 Act]

When could a Vexatious Litigant Order be made?

An order has recently been granted naming a party litigant who has raised, and lost, 16 court actions and related applications in the last 10 years, as a vexatious litigant.  As a result of the order, he will only be entitled to ‘…institute civil proceedings…with the permission of a judge of the Outer House [of the Court of Session]’.  The proceedings were largely instigated against the same party, as a response to his sequestration in 2008, and his belief that the basis for his sequestration was wrong.  He raised a variety of actions and asked for various orders which were dismissed or which were decided against him in the Sheriff Court, Sheriff Appeal Court and Court of Session.  The Court of Session noted that the Sheriffs or Judges who determined the previous actions observed them to be ‘hopelessly flawed’ and ‘hopelessly irrelevant’.  

In granting the vexatious litigant order, the Court identified, at paragraph 10, that:-

“…it is not persistent failure which is the key, rather that the failure in question has to be based on there being no merit even to commence the litigation or make the application.  The critical finding will be that repeated litigations and applications have failed for reasons of competence, irrelevance and the like.  It is the fact that repeated actions were commenced with there being no reasonable grounds for doing so which can render them vexatious’.

Comment

This use of the statutory power to make a vexatious litigant order will provide some comfort to those faced with the cost and frustration of defending repeated, unmeritorious, actions instigated by the same party.

Should you need any advice in relation to vexatious litigation, please contact Sarah Phillips in Commercial Disputes.