Turning the tide against vexatious litigants

We provide further guidance following the judgment in Sangamneheri v Chartered Institute of Arbitrators [2022] EWHC 886 (Comm), 2022 WL 01093653.

What is the problem?

According to the gov.uk, website, there are currently 124 people who are the subject of Extended Civil Restraint Orders and there are 77 extant General Civil Restraint Orders. Behind each order lies a tale of persistent, meritless litigation, with all of the attendant waste of costs and court time. Anecdotally, lawyers are reporting an uptick in such claims. This article explores the recent Sangamneheri judgment and looks at how to take control of cases involving litigants who will not take ‘no’ for an answer.

A case in point

The recent judgment concludes Mr Sangamneheri’s second round of litigation arising from an abortive arbitration, which related to an alleged contract to exchange plots of land for gold. The arbitration did not proceed because Mr Sangamneheri declined to pay the deposit that the arbitrator had requested and, in due course, the arbitrator resigned. Since 2015, Mr Sangamneheri has persistently pursued not only those involved with appointing the original arbitrator but also the various defendants’ legal representatives, judges and court staff who have dealt with his claims.

Mr Sangamneheri first tried to bring a claim for judicial review after the appointed arbitrator resigned. The application for permission to bring the claim was dismissed as being “…totally without merit...”.

Mr Sangamneheri then sued the arbitrator for 583,387,844,759,442,000,000,000kg of gold and attempted to join in the Chartered Institute of Arbitrators (“CIArb”) and various members of its staff. This firm acted for the arbitrator. Mr Sangamneheri’s theory of the case was that the arbitrator and the potential defendants had become bailees of the gold — a notion which the Honourable Mr Justice Males, in dismissing one of his many applications, was to describe as “…absurd...” . Striking out the claim and making a Limited Civil Restraint Order in July 2017, Master Kay Q.C. wryly observed that the quantity of gold claimed was “...more than the total amount of gold ever mined in the world…”.

During the life of the claim, Mr Sangamneheri made a number of meritless applications, including an application for the “…summary criminal conviction...” of the arbitrator, CIArb and their legal teams. He also accused court staff of dishonesty and applied for a ”…voluntary bill of indictment...” against various parties, including Master Kay Q.C. By ensuring that all of Mr Sangamneheri’s many applications were certified as “...totally without merit...” and pressing for the courts to consider restraining his actions, we were ultimately able to obtain a two-year Extended Civil Restraint Order against him in January 2018.

The ECRO gave rise to a welcome hiatus in Mr Sangamneheri’s campaign against the arbitrator, CIArb and its various employees, but in April 2021, he was back. At that point, he issued yet another claim arising from the arbitration, which was largely a re-hash of the original. We applied to strike it out, as did the representatives of the other defendants and the matter came before Patricia Robertson Q.C., sitting as a Deputy Judge of the High Court.

In striking out the claim and certifying it as “…totally without merit...”, the judge observed “...the Claimant has repeatedly advanced baseless allegations of dishonesty and bad faith…….That history clearly does amount to unjust harassment of those parties who had been the repeat targets of his activity.” She also imposed a further ECRO, which will last until 2024.

Given Mr Sangamneheri’s history of re-starting litigation when the earlier ECRO expired, we were keen to have the papers referred to the Attorney General, for her to consider whether to apply for an indefinite civil proceedings order under section 42(1) of the Senior Courts Act 1981. Some detective work on our part had revealed that, during the hiatus in litigation involving our client, Mr Sangamneheri had been involved in litigation against another party, which ultimately resulted in the making of a General Civil Restraint Order in November 2021. That intelligence, together with the history before her, persuaded the judge to make the referral to the Attorney General, recognising, “...a broader problem than the Claimant’s repeated attempts to relitigate the issues relating, specifically, to the arbitration.”

Take away points

Civil Restraint Orders are a vital tool in curtailing the activities of serial litigants. The requirements for each type are as follows:

• 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);
• ECRO, which restrains a party to the proceedings from issuing certain claims or making certain applications in specified courts — is available where a party persistently issues claims or makes applications (at least three or more) that are totally without merit (PD 3C.3.1);
• GCRO, restrains a party to the proceedings from issuing any claim or making any application in specified courts — is 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).

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/claims that have to be actively defended.

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 will be welcomed by those being pursued by serial litigants.

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 an indefinite civil proceedings order. The chances are that if a claimant is harassing your client, they might well have harassed someone else’s……….