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A.History of vexatious litigant statutes in the UKThe UK was the first nation in the world to introduce fettered access to its courts via the subterfuge of vexatious litigant legislation – access to justice and information is likely to be one of the most important civil rights issues in the 21st century. THE HISTORY OF VEXATIOUS LITIGANT STATUTES Vexatious Actions Act 1896
Vexatious Actions (Scotland) Act 1898 Section 42 of the Supreme Court Act 1981 Judicature (Northern Ireland) Act 1978 Restriction of Vexatious Legal Proceedings (Guernsey) Law 1985 THE HISTORY OF
VEXATIOUS LITIGANT STATUTES IN THE UNITED KINGDOM (including the CHANNEL ISLANDS) ENGLAND AND WALES The Vexatious Actions Bill, 1896 was introduced in the House of Lords by Lord Halsbury then Lord Chancellor to protect the Archbishop of Canterbury. See Hansard, (Lords), June 29, July 14, August 14, 1896, and Hansard, (Commons), August 10, 1896. This was the first Vexatious Litigant statute of its kind in the world and is the ancestor and original source for all other Vexatious Litigant Statutes world-wide. As can be seen by the original debate in the House of Commons on August 10, 1896, some MPs had grave misgivings about the constitutionality of the Bill by removing otherwise unfettered access to the courts, and the comments as to whether such a Bill would have been introduced to protect ordinary people if the Archbishop of Canterbury had not been involved are particularly pertinent. The Bill passed into law on August 14, 1896 and became the Vexatious Actions Act, 1896 and extended to England and Wales only. It was consolidated into section 51 of the Supreme Court of Judicature (Consolidation) Act, 1925 in identical terms which came into force on July 31, 1925, and was subsequently amended by the Supreme Court of Judicature (Amendment) Act, 1959 to prohibit appeals against refusals of leave to bring proceedings once a person had been made vexatious and to cover ongoing actions and introduced as a Private Members Bill. See Hansard, (Commons), February 12, March 6, 1959 and Hansard, (Lords), May 5, 1959. Of particular interest is the speech by Lord Conesford on May 5, 1959. The Supreme Court of Judicature (Amendment) Act, 1959 came into force on May 14, 1959, and was consolidated and amended by section 42 of the Supreme Court Act, 1981 to cover applications made in any pending proceedings whether brought by the litigant or not and replacing "prima facie" with "reasonable grounds" as as criteria for granting of subsequent leave to vexatious litigants to bring or continue with proceedings etc. The Supreme Court Act, 1981 was enacted July 28, 1981 and came into force on January 1, 1982. It was amended by section 24 of the Prosecution of Offences Act, 1985 to provide for a "civil proceedings order" in respect of purely civil proceedings and a "criminal proceedings order" relating to criminal prosecutions considered to be vexatious, and an all proceedings order to encompass both forms of proceedings. The Prosecution of Offences Act, 1985 came into force in 1986; the application is brought by the Attorney-General. From 1944 onwards, HM Attorney-General delegated to HM Solicitor-General the "function" of making the application under section 1(1)(c) of the Law Officers’ Act, 1944. Applications are now brought by the HM Solicitor-General on behalf of the HM Attorney-General in his name under section 1(1) and (4)(b) of the Law Officers Act, 1997. SCOTLAND The Vexatious Actions (Scotland) Bill was introduced in the House of Lords in 1898 and after being passed by both Houses became the Vexatious Actions (Scotland) Act, 1898 on August 12, 1898. It was amended by section 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Act, 1980 to prohibit appeals against refusals of leave by the Lord Ordinary. As this is the only amendment made to the original Act, the Act does not presently prohibit the continuance of proceedings already instituted prior to the making of the Vexatious Litigation Order or applications without leave in ongoing proceedings. See Hansard, (Lords), July 3, 1979. Of particular interest is the speech by the Earl of Mansfield, Minister of State for the Scottish Office. The application is brought by the HM Lord Advocate. From 1944 onwards, HM Lord Advocate delegated to HM Solicitor-General for Scotland the "function" of making the application under section 2(1)(c) of the Law Officers’ Act, 1944. NORTHERN IRELAND The Judicature (Northern Ireland) Act, 1978 was introduced by the Westminster Parliament under direct rule and included in section 32 similar powers as in England and Wales for the Attorney-General to apply for a Vexatious Litigant Order. However, section 32 does not presently prohibit appeals against refusals of leave and does not prohibit applications without leave in ongoing proceedings. Section 32 orders also apply to inferior tribunals unlike England and Wales, Scotland and Guernsey. The application is brought by HM Attorney-General. From the enactment of the Judicature (Northern Ireland) Act, 1978, HM Attorney-General for Northern Ireland, who is the same as for England and Wales, delegated to HM Solicitor-General for England and Wales the "function" of making the application under section 1(1)(c) and 3 of the Law Officers’ Act, 1944. Applications are now brought by the HM Solicitor-General for England and Wales on behalf of the HM Attorney-General for Northern Ireland in his name under section 2(1) and (4)(b) of the Law Officers Act, 1997. GUERNSEY The Restriction of Vexatious Legal Proceedings (Guernsey) Law, 1985 was passed by Order in Council on July 31, 1985 in response to a meeting of the States of Deliberation dated 27 June 1984 and their resolution dated 26 September 1984. However, the Restriction of Vexatious Legal Proceedings (Guernsey) Law, 1985 does not presently prohibit the continuance of proceedings already instituted prior to the making of the Vexatious Litigation Order and applies only to the Magistrates’ Court but not the Royal Court. The application is brought by the HM Procureur. JERSEY A similar provision to that of Guernsey is being considered and proposed to be introduced by Order in Council after consultation. Vexatious Actions Act 1896
BE it enacted by the Queen’s most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons, in
this Present Parliament assembled, and by the authority of the same, as
follows :CHAPTER 51. An Act to prevent Abuse of the process of the High Court and other Courts by the Institution of vexatious Legal Proceedings. [14th August 1896.] Power of court to prohibit institution of action without leave 1. It shall be lawful for the Attorney-General to apply to the High Court for an order under this Act, and if he satisfies the High Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons, the court may, after hearing such person or giving him an opportunity of being heard, after assigning counsel in case such person is unable on account of poverty to retain counsel, order that no legal proceedings shall be instituted by that person in the High Court or any other court, unless he obtains the leave of the High Court or some judge thereof, and satisfies the court or judge that such legal proceeding is not an abuse of the process of the court, and that there is prima facie ground for such proceeding. A copy of such order shall be published in the London Gazette. 2.––(1.) This Act shall not extend to Scotland or Ireland. (2.) This Act may be cited as the Vexatious Actions Act, 1896. Vexatious Actions
(Scotland) Act 1898
BE it enacted by the Queen’s most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons, in
this Present Parliament assembled, and by the authority of the same, as
follows :CHAPTER 35. An Act to prevent vexatious Legal Proceedings in Scotland. [12th August 1898.] Power of Court of Session to prohibit institution of action without leave 1. It shall be lawful for the Lord Advocate to apply to either Division of the Inner house of the Court of Session for an order under this Act, and if he satisfies the Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court, and whether against the same person or against different persons, the Court may order that no legal proceedings shall be instituted by that person in the Court of Session or any other court, unless he obtains the leave of the Lord Ordinary on the Bills in the Court of Session, having satisfied the Lord Ordinary that such legal proceeding is not vexatious, and that there is prima facie ground for such proceeding. A copy of such order shall be published in the Edinburgh Gazette. lA. A decision of the Lord Ordinary to refuse leave, under section 1 of this Act, to institute legal proceedings shall be final. 2. This Act may be cited as the Vexatious Actions (Scotland) Act, 1898. 42.––(l) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground–– (a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or (b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another; or (c) instituted vexatious prosecutions (whether against the same person or different persons), the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order, a criminal proceedings order or an all proceedings order. (1A) In this section–– "civil proceedings order" means an order that–– (a) no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made; (b) any civil proceedings instituted by him in any court before the making of the order shall not be continued by him without the leave of the High Court; and (c) no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court; "criminal proceedings order" means an order that–– (a) no information shall be laid before a justice of the peace by the person against whom the order is made without the leave of the High Court; and (b) no application for leave to prefer a bill of indictment shall be made by him without the leave of the High Court; and "all proceedings order" means an order which has the combined effect of the two other orders. (2) An order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely. (3) Leave for the institution or continuance of, or for the making of an application in, any civil proceedings by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application. (3A) Leave for the laying of an information or for an application for leave to prefer a bill of indictment by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the institution of the prosecution is not an abuse of the criminal process and that there are reasonable grounds for the institution of the prosecution by the applicant. (4) No appeal shall lie from a decision of the High Court refusing leave for the institution or continuance of, or for the making of an application in legal proceedings by a person who is the subject of an order for the time being in force under subsection (1). (5) A copy of any order made under subsection (1) shall be published in the London Gazette. Judicature (Northern Ireland) Act 1978 Restriction
on institution of vexatious actions
32.––(1) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court or tribunal, and whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order–– (a) that no legal proceedings shall without the leave of the High Court be instituted by him in any court or tribunal ; (b) that any legal proceedings instituted by him in any court or tribunal before the making of the order shall not be continued by him without such leave ; and such leave shall not be given unless the court is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings. (2) The court may in its discretion assign a solicitor or counsel to any person against whom an order is sought under this section and the expenses of any such solicitor or counsel shall be taxed and paid out of the legal aid fund. (3) A notice of the making of any order under this section shall be published in the Belfast Gazette. THE STATES, in pursuance of their Resolution of the 27th day of June, 1984, have approved the following provisions which, subject to the Sanction of Her Most Excellent Majesty in Council, shall have force of law in the Island of Guernsey. ORDER IN COUNCIL
1. (1) If, on an application made by Her Majesty’s Procureur or Her
Majesty’s Comptroller under this section, the Royal Court. sitting as
an Ordinary Court, is satisfied that any person has habitually and
persistently and without any reasonable ground––Restriction of vexatious legal proceedings (a) instituted vexatious legal proceedings in the Magistrate’s Court whether against the same person or against different persons; or (b) made vexatious applications in any legal proceedings in the Magistrate’s Court, and whether instituted by him or another, the Court may, after hearing that person or giving him an opportunity of being heard, order–– (i) that no legal proceedings shall without the leave of the Royal Court be instituted by him in the Magistrate’s Court; and (ii) that any legal proceedings instituted by him in the Magistrate’s Court before the making of the order shall not be continued by him without the leave of the Royal Court; and (iii) that no application shall without the leave of the Royal Court be made by him in any legal proceedings instituted, whether by him or another, in the Magistrate’s Court. (2) An order under subsection (1) of this section may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely. (3) Leave for the institution or continuance of, or for the making of an application in, any legal proceedings by a person who is the subject of an order for the time being in force under subsection (1) of this section shall not be given unless the Royal Court is satisfied that the proceedings or application are not an abuse of the process of the Court and that there are reasonable grounds for the proceedings or application. (4) No appeal shall lie from a decision of the Royal Court refusing leave for the institution or continuance of, or for the making of an application in legal proceedings by a person who is the subject of an order for the time being in force under subsection (1) of this section. (5) A copy of any order made under subsection (1) of this section shall be published in the Gazette Officielle. Powers of the Bailiff 2. The powers of the Royal Court under section 1 of this Law shall be exercised by the Bailiff sitting alone. Rules of the Royal Court 3. The Royal Court may, from time to time, make Rules dealing generally with all matters of procedure and incidental matters arising under this Law and for carrying this Law into effect. Savings 4. Nothing in this Law shall derogate from any jurisdiction hitherto vested in the Royal Court to restrict vexatious legal proceedings. Interpretation 5. (1) In this Law–– "The Bailiff" means the Bailiff, the Deputy Bailiff, a Lieutenant Bailiff or the Juge Délégué; "the Magistrate’s Court" means the Court established under and by virtue of the Magistrate’s Court (Guernsey) Law, 1954 (2) Except in so far as the context otherwise requires, any reference in this Law to any other enactment shall he construed as a reference to that enactment as repealed and re-enacted, amended, extended or applied by or under any other enactment including this Law. Citation 6. This Law may be cited as the Restriction of Vexatious Legal Proceedings (Guernsey) Law, 1985. |
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