Regaining control in vexatious litigation

The recent family court decision of TF v DL [2022] EWFC 139 shone a spotlight on the burgeoning problem of vexatious litigants. This article explores the difficulties faced by opposing parties when dealing with serial litigants and what can be done to alleviate those problems.

What happened in TF v DL?

The father, (“TF”), had been diagnosed with delusional disorder, which exhibited itself in an obsession with litigation. Acting as a litigant in person, he made a total of 13 applications relating to access to his children, littered with assertions that the district judge described as “deeply offensive, homophobic and sexist.” His vitriol was directed at various parties, including his ex-partner and her family, her legal representatives, the children’s guardian and even members of the judiciary. DL’s solicitor was, he said, “corrupt”, “completely incompetent” and needed “exposing and hanging by the neck”. Such abhorrent conduct drove the district judge to make the following comment about DL’s solicitor and the children’s guardian in his closing remarks:

“David Faulkner and Nina Skilton have been subject to intense, unpleasant, personal abuse from [the father]. None of it justified in any manner. They have performed their obligations to the children in an exemplary manner.”

Noting that TF had used “..the vilest abuse against DL and sought to undermine every aspect of her personality and parenting..”, the district judge observed, “..the courts have long recognised that the litigation process can be used as a method of post separation abuse and that is reflected in the new Section 91A CA 1989…” Therefore, he made an order under Section 91(14) of the Children Act 1989 (“Section 91 Order”) preventing TF from making future applications under that Act without leave of the court.

The wider problem

The difficulties encountered by DL, her legal team and the court in TF v DL are not confined to the sphere of family law - they are becoming depressingly familiar to litigation solicitors across the board. Anecdotally, practitioners are reporting an uptick in abuse from serial litigants, who will not take “no” for an answer and who try to repeatedly relitigate issues that the courts have already dismissed.

According to the gov.uk website, there are currently 139 people who are the subject of Extended Civil Restraint Orders and there are 83 extant General Civil Restraint Orders. Those figures have increased by 12% and 8% respectively since April 2022. Behind each order lies a tale of persistent, meritless litigation, with all of the attendant waste of costs and court time. This upward trend in numbers is likely to continue, as the reduction of publicly funded legal aid continues to take effect (through the Legal Aid, Sentencing and Punishment of Offenders Act 2012) and poor economic conditions mean that fewer people can afford legal representation. More litigants are missing out on the filter of a legal consultation and advice before embarking upon ill-advised litigation. For some, once instigated, the court process becomes an obsession that they cannot walk away from.

The problems arising from the increase in persistent and serial litigants are multifaceted. Represented opponents incur substantial costs, which they may, ultimately, be unable to recover if the vexatious litigant has few or no assets. Scarce court resources are wasted and represented parties and their legal teams are subjected to what is often unremitting and personal abuse.

A toolkit for dealing with vexatious litigants

As TF v DL demonstrates, section 91 Orders are effective weapons against vexatious litigants in the family court system. But what can be done in other civil claims?

Civil Restraint Orders are a vital tool in curtailing the activities of serial litigants. Given the increased prevalence of vexatious litigation, legal practitioners ought to familiarise themselves with the requirements for each type of CRO, which are as follows:

• Limited Civil Restraint Order (“LCRO”), which restrains a party to the proceedings from making any further applications in the proceedings in which the LCRO is made — requires two or more applications that are totally without merit (PD 3C.2.1);
• Extended Civil Restraint Order (“ECRO”), which restrains a party to the proceedings from issuing certain claims or making certain applications in specified courts — available where a party persistently issues claims or makes applications (at least three or more) that are totally without merit (PD 3C.3.1);
• General Civil Restraint Order (“GCRO”), which restrains a party to the proceedings from issuing any claim or making any application in specified courts — available where a party persistently issues claims or makes applications (at least three or more) that are totally without merit, in circumstances where an ECRO would not be sufficient or appropriate (PD 3C.4.1).

The 140th CPR update, which came into force on 6 April 2022, increased the maximum term of ECROs and GCROs from two to three years, in a move which was welcomed by those being pursued by serial litigants. Pressing for such orders to be made at the earliest possible opportunity is a good way of keeping costs down and limiting the number of applications and claims that have to be actively defended.

Early identification of vexatious litigants is tactically advantageous, to ensure that all possible applications and claims that are dismissed are certified as totally without merit. Such a strategy allows the represented party to obtain a LCRO at the earliest opportunity. Whilst the court is not confined to considering orders which have the words, “..totally without merit..” on their face, the case of Odutola v Hart [2018] EWHC 2260 (Ch) illustrates the difficulties faced by a court when considering applications which were not certified in that manner at the time. In that case, the court reluctantly declined to make a GCRO because it was uncomfortable with factoring in an uncertified summons application dismissed by a previous judge. Obtaining the certifications, when possible, streamlines the process of obtaining a CRO.

When inviting the court to make a CRO, represented parties also need to consider who is pulling the strings and causing improper claims or applications to be issued. PD 3C applies where a court is considering making a CRO “..against a party who has issued claims or made applications which are totally without merit.” However, the case law demonstrates that courts have interpreted the term “party” as going beyond the named claimant or applicant in the proceedings. There have been several instances of CROs being made against the person who is the driving force behind the proceedings, even if they were not, originally, a named party. For example:

• in Connolly v Landy and others [2019] EWHC 1457 (Ch), Roth J upheld an ECRO against a claimant’s husband; and
• in MMG Consulting Engineers Ltd v Harmon [2020] EWHC 3664 (Ch), an ECRO was made against the sole shareholder and director of a company, who was “..controlling proceedings that are no longer rationally for the financial benefit of anyone but are pursued apparently for an ulterior reason, and the proceedings are conducted improperly…”

Such non-parties are simply joined to the proceedings to enable a CRO to be made.

Section 42 orders

Where a litigant simply waits for the latest CRO against them to expire before issuing further, unmeritorious litigation, consideration may need to be given to an indefinite civil proceedings order under section 42(1) of the Senior Courts Act 1981 (“Section 42 order”). Such orders are made on the application of the Attorney-General and the High Court needs to be satisfied that the litigant has habitually, persistently and without any reasonable ground, instituted vexatious civil proceedings and/or made vexatious civil applications. If granted, such an order has the draconian effect of preventing the party from instituting or continuing proceedings and/or making an application, without the leave of the High Court.

The rationale for the court’s power to restrain a vexatious litigant was summarised by Sir James Pickering (sitting as a Deputy High Court Judge) in Crimson Flower Productions Ltd v Glass Slipper Ltd [2020] EWHC 942(Ch).

“…the idea is not to prevent access to the courts. It is not to prevent applicants bringing applications which fail. That happens the whole time. It is only to prevent the persistent bringing of applications which are hopeless and which actually hamper the administration of justice rather than assist it or are a part of it.”

This firm acted for the Sixth Defendant in the recent case of Sayed S. Sangamneheri v The Chartered Institute of Arbitrators, The President of the Chartered Institute of Arbitrators, Waj Khan, Keisha Williams, Chris Udoh, Jonathan Bellamy [2022] EWHC 886 (Comm), where Patricia Robertson QC was persuaded to refer her judgment to the Attorney-General, for her to consider a possible application for a Section 42 order. Mr Sangamneheri was the paradigm of a vexatious litigant and we were able to establish that he was the subject of ECROs arising from unrelated litigation – a factor which helped enormously in persuading the judge to make the referral.

Take away points

Against the backdrop of rising pressure upon court resources, judges appear increasingly prepared to step in where a litigant’s conduct is spiralling out of control. Where a represented party is dealing with someone who exhibits all of the hallmarks of a vexatious litigant, the court should be invited, where appropriate, to certify failed applications as “..totally without merit..”, with a view to obtaining a CRO.

If faced with a litigant who is extremely persistent, it is also worth investigating whether they are already subject to an ECRO or a GCRO. Further information can be found on the gov.uk website. As well as being a possible barrier to further claims/applications against your client, such intelligence can also strengthen the case for a Section 42 order. The chances are that if a claimant is harassing your client, they might well have harassed someone else.