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Brief Counsel

The Law Commission on vexatious litigants

05 July 2012

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The Law Commission is reviewing the treatment of vexatious litigants as part of its review of the New Zealand court system and to improve life for the litigiously oppressed. 

We think it is about time.  We believe that the rules need an overhaul to allow victims the right to apply for restraining orders and to lower the initial threshold for intervention. 

Why the rules exist

The prompt for the original Vexatious Actions Act 1896 (UK) was Mr Alexander Chaffers, a former attorney and solicitor who initiated years of litigation in numerous courts, much of which was mortifying to his defendants and most of which he carried on without any financial means to do so.
He lost 47 of the 48 cases that he began and was described by one academic as a “remarkable pest”,1 fully deserving of his claim to infamy. 
There are various practical deterrents to litigation, the most obvious being the cost involved, the time and effort required and the risk that costs will be awarded against you.  And access to the courts is a basic right of citizenship so rules which restrict that access are not imposed lightly. 
But there is also a need to prevent the determined vexatious litigant (such as the celebrated Mr Chaffers) from tying up the justice system’s limited resources and causing unnecessary cost and pain to their victims.

How does New Zealand compare with other jurisdictions?

The test in New Zealand is high and can be satisfied only after the litigant has commenced multiple proceedings.

The courts cannot reject a new proceeding on the grounds that its promoter is vexatious, although the Attorney-General can apply for an order that would prevent a litigant from commencing civil proceedings without leave. 

An application by the Attorney-General is a last resort.  To obtain such an order, the court must be satisfied that the litigant has persistently brought vexatious proceedings without reasonable grounds.

The United Kingdom has a different approach.  It has a graduated system with three classes of orders to restrain vexatious litigants. 

  • The first class of order restrains a litigant from making any further applications within an existing proceeding without leave. 
  • The second class of order prevents a litigant from issuing new claims or making applications either in the existing proceeding or in any new proceeding which concerns the same or similar matter. 
  • The third class of order is a general restriction which prevents the litigant from commencing any proceeding about any matter, unless the litigant obtains the leave of the court to do so.

The final two types of order must be made for a specific time period of no more than two years.  All of the orders can be sought by the parties involved, or initiated by the court itself. 

Queensland has a similar structure to the New Zealand system except that there is a broader range of people besides the Attorney-General who are eligible to apply for an order, including the Crown Solicitor, the registrar of a court, a defendant or any other person with sufficient interest. 

Likely reforms

The Law Commission’s preliminary view is that the current system imposes too high a test and that there could be benefits in adopting the United Kingdom’s graduated approach.  
However, the Commission is concerned that the power to restrict a litigant from accessing the court system be limited to what is truly necessary for the administration of justice.  Accordingly, while it supports extending the ability to apply for orders beyond the Attorney-General, it is proposing that those other parties should have to apply for leave before making such an application.  The leave requirement is intended as a safeguard against tactical applications.
Similarly, the Commission opposes extension of the orders to criminal proceedings and thinks it important that the orders are limited in duration and open to appeal by the litigant.

Chapman Tripp comment

We support a move to the UK model, as does the Bar Association which put forward an eminently sensible and comprehensive submission, noting that such an approach would allow the courts to constrain litigants from vexing individual as well as multiple proceedings.

However, we think that the Commission could be bolder about the rules governing who is able to apply for orders. 

Confining the right to the Attorney-General is unnecessarily cumbersome.  Nor do we think that other parties should be made to apply for leave first.  Judges are well able to make appropriate decisions, preventing victimisation while discouraging tactical applications. 

Our thanks to Marie Wisker for writing this Brief Counsel. For further information, please contact the lawyers featured.

Footnote

1. M Taggart “Alexander Chaffers and the genesis of the Vexatious Actions Act 1896” (2004) 63(3) CLJ 656-684

Contacts