Judicial Control of Vexatious Activity in the Courts (Summary of UK Approach)


Admin JMad: I highly recommend you read Joan Donnelly’s “Inherent Jurisdiction and Inherent Powers of Irish Courts”, Judicial Studies Institute Journal, 2009:2, 122, in which Donnelly rectifies Jacob and begins to distinguish inherent power from inherent jurisdiction. Donnelly also sets up helpful categories for each.


Judicial Control of Vexatious Activity
in the Courts



Statutory Framework

Section 42 Supreme Court Act 1981

Civil, criminal and all proceedings orders

Section 33 Employment Tribunals Act 1996

Restriction of proceedings orders

CPR Part 3, Practice Direction 3c

Civil restraint orders

Attorney General v Barker [2000] 1 FLR 759 P.764

Per Lord Bingham:

Para 19. “Vexatious” is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgement that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.”

Para 22…..”the court has become familiar with the hallmark of persistent and habitual litigious activity. The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action: that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop.”

Inherent Jurisdiction Of The Court

Cocker v Tempest (1841) 7M&W 502

Inherent jurisdiction of the court to control its own process and prevent abuses

Hunter v Chief Constable West Midlands Police [1982] AC 529

No fixed categories of circumstances in which courts can exercise inherent powers

AB v John Wyeth & Brother Ltd [1996] 8 Med LR 57

Court has inherent jurisdiction to control abuse, should be slow to exercise the power but affirmed there are no fixed categories

Bhamjee v Forsdick and others [2003] EWCA Civ 1113

Considered and approved earlier authorities on inherent jurisdiction

Exercise Of The Inherent Jurisdiction

a) Litigants

Grepe v Loam (1887) 37 Ch D 168

Restriction on making any further applications in a particular action without leave

Ebert v Venvil [2000] Ch 484

Extended Grepe v Loam to taking any step in the High Court or county court against specified defendants on specified matters without leave

Bhamjee v Forsdick and others [2003] EWCA Civ 1113

Updating of earlier authorities to create civil restraint orders

b) Assisting other litigants

Paragon Finance Pic v Noueiri [2001] EWCA Civ 1402

Restriction on advising, preparing applications and appearing for other litigants

c) Vexatious/ abusive communications and correspondence
     with Courts

HM Attorney General v Ebert [2001] EWHC Admin 695

Restriction on communicating with anyone at the Royal Courts of Justice except in specified circumstances

Mahajan v Waldman & Others [2003] EWCA Civ 1899

Restriction on corresponding with staff or lawyers of the Civil Appeals Office in a rude or abusive manner

HM Attorney General v Ebert [2005] EWHC 1254 (Admin)

Restriction on communicating with any judge or officer of HM Court Service in an insulting or abusive manner

d) Harassment of judges/court staff/ advocates

HM Attorney General v Ebert [2001]

Restriction on entering the Royal Courts of Justice except in defined circumstances

e) Persistent applications for leave pursuant to a civil
     proceedings order

HM Attorney General v Ebert [2005]

Restriction on making applications except in narrowly defined circumstances

Compliance With ECHR /
HRA On Restricting Access To Courts

Golder v United Kingdom (1975) 1 EHRR 524, 536, 537

Ashingdane v United Kingdom (1985) 7 EHRR 528, 546

Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, 475

Ebert v Official Receiver [2001] EWCA Civ 340

Bhamjee v Forsdick [2003] EWCA Civ 1113


"Sed quis custodiet ipsos custodes?" — Juvénal, Satires, VI, 346.  En français : « Qui nous protègera contre ceux qui nous protègent ? »  In English: " Who will protect us from those who protect us? "

 — Mauro Cappelletti dans Louis Favoreu (dir.), Le pouvoir des juges, Paris, Economica, 1990, p. 115.
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“In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and cor­ruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. ‘Discretion’ necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.”

— Mr. Justice Ivan Cleveland Rand writing in the most memorable passage in Roncarelli v. Duplessis, [1959] S.C.R. 121 at the Supreme Court of Canada, page 140.
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A Word on Caricature
“Humor is essential to a successful tactician, for the most potent weapons known to mankind are satire and ridicule.”

— “The Education of an Organizer”, p. 75, Rules for Radicals, A Practical Primer for Realistic Radicals by Saul Alinsky, Random House, New York, 1971.

I am no fan of Saul Alinsky's whose methods are antidemocratic and unparliamentary. But since we are fighting a silent war against the subversive Left, I say, if it works for them, it will work for us. Bring on the ridicule!  And in this case, it is richly deserved by the congeries of judicial forces wearing the Tweedle suits, and by those who are accurately conducting our befuddled usurpers towards the Red Dawn.

— Admin, Judicial Madness, 22 March 2016.
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