Vexatious litigation is legal action which is brought solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender.
A single action, even a frivolous one, is usually not enough to raise a litigant to the level of being declared vexatious. Rather, a pattern of frivolous legal actions is typically required to rise to the level of vexatious. Repeated and severe instances by a single lawyer or firm can result in eventual disbarment.
Some jurisdictions have a list of vexatious litigants: people who have repeatedly abused the legal system. Because lawyers could be disbarred for participating in this abuse of the legal process, vexatious litigants are often unable to retain legal counsel, and such litigants, therefore, represent themselves in court. Those on the vexatious litigant list are usually either forbidden from any further legal action or are required to obtain prior permission from a senior judge before taking any legal action. The process by which a person is added to the list varies among jurisdictions. In liberal democratic jurisdictions, declaring someone a vexatious litigant is considered to be a serious measure and rarely occurs, as judges and officials are reluctant to curtail a person's access to the courts.
These legal actions occur in some countries of the former British Empire, where the common law system still remains: Australia, Canada, Ireland, New Zealand, UK, and US, which are specified below. The civil (codified/continental) law does not have such a prohibition.
History of legislation against vexatious litigation
The concept of vexatious litigation entered into law in 1896 with the Vexatious Actions Act, enacted in England and soon extended to Scotland and Ireland. This was primarily a response to the actions of Alexander Chaffers, a solicitor who filed numerous actions against leading members of Victorian society. When costs were awarded against him, he failed to pay.
The first such law outside the British Isles, the Supreme Court Act, 1927 was passed in Australia nearly thirty years later. This too was prompted by the behaviour of an individual, Rupert Millane. The first vexatious litigant law in the United States was enacted in California in 1963. By 2007 four more US states had passed similar legislation: Florida, Hawaii, Ohio, and Texas.
Laws by country
The High Court of Australia has declared only three people to be vexatious litigants in its century-old existence, whereas the Australian Federal Court system, established in 1976, has at least 36 names on its barred registry.
New South Wales
In Queensland, the process for having someone declared a vexatious litigant is governed by the Vexatious Proceedings Act 2005, which supplanted an earlier Act. Importantly, the Act defines a vexatious proceeding to include a proceeding brought without merit or any prospect of success, with the consequence that it is not necessary to prove the existence of any improper motive in order to obtain relief under the Act.
In South Australia, vexatious litigation laws were enacted in the mid-1930s with the Supreme Court Act 1935-1936, following similar laws enacted in Victoria. In 2010 the Rann government acted to strengthen the ability of the courts to act against vexatious litigants by "increasing the range of courts and tribunals that can declare people as vexatious". Prior to that date, few people had been banned from bringing litigation to South Australian courts – by 2005, only two people were listed as having been declared as vexatious litigants, the first in 1997 and the second declared during that year. Subsequently, at least two other South Australians have been found to be vexatious litigants.
As of 2006, only 13 people—including convicted mass-murderer Julian Knight—had been declared vexatious litigants since the law was introduced in 1930.
Under the Constitution Act, 1867, section 92(14), each province is vested with the power to enact and apply laws relating to the administration of justice within its own territory.
In Canada, Section 40 of the Federal Court Act and in Ontario Section 140 of the Courts of Justice Act, restrict the ability to introduce or continue proceedings for those who have instituted vexatious proceedings or conducted proceedings in a vexatious manner.
In Quebec, the Code of Civil Procedure is the principal legislation that sets rules related to civil procedure. Under section 46 of the Code of Civil Procedure, all judicial courts and judges in Quebec are vested with "...all the powers necessary for the exercise of their jurisdiction". Furthermore, they may:
"…at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law."
Section 46 vests a very broad power on judicial courts and judges to ensure that the administration of justice is conducted according to decorum and according to the remedial nature of justice. As the courts's decisions have shown it, the authority to declare a litigant as vexatious is directly tributary to the power conferred by section 46. Cases illustrating the application of section 46 are numerous. Among them, there are: Nguiagain v. Commission de la fonction publique, in which the judge rejected the plaintiff's motion for a mandamus to enjoin his union to revise the grievance that he had filed on the grounds that the motion was groundless and abusive; De Niverville c. Descôteaux, where an injunction was rendered declaring the respondent, disbarred lawyer Descôteaux, as a vexatious litigant due to the multiple unfounded and frivolous actions that he had sought against the plaintiff De Niverville; and in Fabrikant v. Corbin, a motion to declare the plaintiff Valery Fabrikant as a vexatious litigant was granted to the defendant, Dr. Corbin. In all of the above cited cases, a litigant was only declared vexatious following a proceeding instated by the opposite party. Moreover, section 46’s scope is limited to judicial courts and judges. Administrative tribunals are legislative creations and they can only exist and function within the limits that are imposed by law. Administrative tribunals in Quebec cannot declare a person a vexatious litigant.
As per section 90 of the Rules of Practice of the Superior Court of Québec in Civil Matters, such litigants are now indexed in a registry kept by the Chief Justice in the judiciary district of Montreal. Lawyer and author Claude Duchesnay has reported in May 2003 that a document on the Quebec attorney general’s intranet contains the name of 58 persons who must obtain permission prior to instating proceedings before the courts.
In Ireland, a court may, of its own motion or on application, order that no proceedings, either of a certain type or at all, may be issued by a certain person without leave of that court or some other court, for a specified time, or indefinitely. Such an order is referred to in legal circles as an Isaac Wunder order after Isaac Wunder who made several claims against the Hospitals Trust claiming sweepstakes prizes, but the claims were found to be groundless and the case deemed frivolous or vexatious. He was prohibited from taking further High Court proceedings in the action without leave of the court.
In New Zealand a person may be declared a vexatious litigant by a High Court Judge on the application of the Attorney-General. A vexatious litigant must then apply to a High Court Judge for leave to commence any action. A decision by the High Court whether or not to grant leave cannot be appealed.
England and Wales
In England and Wales there are two methods to control vexatious litigants:
- Civil restraint orders (made by the courts themselves on the application or their own initiative); and
- Vexatious litigants orders (made by the High Court under section 42 of the Senior Courts Act 1981 on the application of HM Attorney-General).
Her Majesty's Courts and Tribunals Service maintains a list of vexatious litigants and those subject to a civil restraint order.
Civil restraint orders
Courts in England and Wales have the means of escalating the sanctions against a litigant who makes applications to the court that are "totally without merit". Civil restraint orders allow courts to forbid applications for court hearings without the permission of a judge. There are three types of CRO: limited, extended and general, with different scopes of application. Further applications totally without merit can lead to the withdrawal of the right of appeal. Harassment of the court and court officials can lead to a penal prohibition notice, prohibiting the litigant from contacting or approaching the court without permission.
Vexatious litigant orders
Section 42 of the Senior Courts Act 1981 provides the High Court with the power to make an order restricting the ability of a person to undertake litigation without leave of the High Court. The High Court may make a civil proceedings order, a criminal proceedings order or an all proceedings order.
A person subject to a civil proceedings order may not institute or continue civil proceedings in any court (which includes tribunals of a judicial function) without leave of the High Court. A person subject to a criminal proceeding order may not lay information before a justice of the peace or prefer a bill of indictment without leave of the High Court. A person subject to an all proceedings order is subject to the restriction in both a civil proceedings order and a criminal proceedings order.
Where the High Court makes an order under this section it is published in The London Gazette.
Such an order can only be made on the application of HM Attorney-General and where the High Court is satisfied that the person has habitually and persistently and without any reasonable ground—
- instituted vexatious civil proceedings, whether in the High Court or the family court or any inferior court, and whether against the same person or against different persons; or
- made vexatious applications in any civil proceedings, whether in the High Court or the family court or any inferior court, and whether instituted by him or another, or
- instituted vexatious prosecutions (whether against the same person or different persons).
In relation to the civil proceedings, the High Court will only grant leave to initiate or continue the proceedings or application where it is satisfied it is not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application.
In relation to criminal proceedings, the High Court will only grant leave for the laying of an information or for an application for leave to prefer a bill of indictment where it 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.
Under the Vexatious Actions (Scotland) Act 1898 the Lord Advocate can apply for an order under section 1 of that Act to prevent any person accused of vexatious litigation from raising any and all legal proceedings "unless he obtains the leave of a judge sitting in the Outer House on the Bills in the Court of Session, having satisfied the judge that such legal proceeding is not vexatious." A list of people who have had such an order brought against them is published on the Scottish Courts website. As of June 2018 there are ten names on this list.
- In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.
- After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
- In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
- Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.
Appeals of an existing action do not count as “final determinations”. Appeals and writs that are related to a current action do not count as “final determinations” or additional determinations, because until all avenues of appeal have been exhausted the determinations cannot be construed as “final”. A judgment is final for all purposes when all avenues for direct review have been exhausted. Interlocutory decisions before a judgment cannot be considered “final determinations”. Docket lists show nothing about qualifying merit of interim motions (Id.)
To meet the unspecified criteria for "repeated" motions or litigations, the number must be much more than two, and the rule based on case law seems to be around 12. "While there is no bright line rule as to what constitutes “repeatedly,” most cases affirming the vexatious litigant designation involve situations where litigants have filed dozens of motions either during the pendency of an action or relating to the same judgment."
Repeated motions must be "so devoid of merit and be so frivolous that they can be described as a flagrant abuse of the system, have no reasonable probability of success, lack reasonable or probable cause or excuse, and are clearly meant to abuse the processes of the courts and to harass the adverse party than other litigants." Evidence that a litigant is a frequent plaintiff or defendant alone is insufficient to support a vexatious litigant designation. The moving party, in addition to demonstrating that the plaintiff is vexatious, must make an affirmative showing based on evidence that the case has little chance of prevailing on the merits. If the plaintiff is so determined, a bond may be required, and if the bond requirement is not met within a specified time period, a judgment of dismissal is ordered. A finding of vexatiousness is not an appealable order, but a dismissal for failure to post a bond requirement based on a judgment of vexatiousness is appealable.
Habeas petitions do not count towards vexatious litigant determination. Vexatiousness in Probate Actions are governed by a different standard (Cal. Prob. Code §1611).
Notable vexatious litigants
- Lawrence Bittaker, who together with his partner Roy Norris was convicted of torturing and murdering five young girls in 1979. He filed 40 separate frivolous lawsuits against the state of California, including one claiming "cruel and unusual punishment" after being served a broken cookie. In 1993, he was declared a vexatious litigant and is forbidden from filing lawsuits without the permission of a lawyer or a judge.
- Alexander Chaffers, a solicitor whose actions led to the first British law against vexatious litigation, the Vexatious Actions Act, 1896. Chaffers became notorious after accusing the wife of Travers Twiss of being a prostitute, and subsequently issued 48 proceedings against leading members of Victorian society in the 1890s. Costs awarded against Chaffers were never paid. After the act was passed, he became the first person to be declared a habitually vexatious litigant and barred from future litigation without judicial permission.
- Valery Fabrikant, a former Concordia University professor serving a life sentence for the murders of four colleagues in 1992.
- Julian Knight, convicted of the Hoddle Street massacre in Melbourne, Australia. Numerous actions, primarily seeking injunctions against the prison incarcerating him, have cost the Victorian government over A$250,000 directly, plus some A$128,000 in outside legal costs.
- David James "Indian Chief" Lindsey, a Melbourne man so declared after repeatedly suing doctors, insurance firms and companies such as Carlton & United Breweries for smoking-related damages. On February 21, 2006, the Supreme Court of Appeal gave him leave to sue Philip Morris, demonstrating that a vexatious litigant is not completely blocked from launching further court action.
- Andy Martin (Anthony Martin-Tragona), a perennial candidate for US elections, who has been barred since 1983 from filing any legal action in a United States federal court without permission. He is also banned from seeking indigent status in Florida courts due to his history of filing abusive petitions, and from filing lawsuits in New York, unless represented by an attorney or with the court's prior approval.
- Jonathan Lee Riches, former prisoner who filed over 2,600 lawsuits over the course of six years.
- The Church of Scientology. "Plaintiffs (Scientologists) have abused the federal court system by using it, inter alia, to attempt to destroy their opponents, rather than to resolve an actual dispute over trademark law or any other legal matter. This constitutes 'extraordinary, malicious, wanton and oppressive conduct.' As such, this case qualifies as an 'exceptional case' and fees should be awarded pursuant to the Lanham Act... It is abundantly clear that plaintiffs sought to harass the individual defendants and destroy the church defendants through massive over-litigation and other highly questionable litigation tactics. The Special Master has never seen a more glaring example of bad faith litigation than this." (s:Religious Technology Center v. Scott (1996), U. S. District Court, Central District of California, No. 85-711-JMI (Bx) 85-7197-JMI (Bx), January 20, 1993, Memorandum of Decision).
- Francis "Coyote" Shivers, actor and singer, declared vexatious by the Los Angeles County Superior Court in 2008.
- Dorothy Squires, singer and former wife of actor Roger Moore; declared a vexatious litigant in 1987; legal fees led to her bankruptcy.
- Leo Stoller, a trademark troll, was declared a vexatious litigant by multiple U.S. federal courts, including the Supreme Court, in 2007.
- Isaac Wunder, who gave his name to the Isaac Wunder order which may be issued in Ireland to vexatious litigants.
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