When is a litigant more than persistent but vexatious?

In litigation, parties have the right to either make multiple legal applications in a case, or issue multiple claims, either concurrently or consecutively.

There are, however, situations, whether due to a lack of understanding or a wilful intention to disrupt, individuals continually attempt to reframe a case or repeat the same application, in the hope of a different result. It is at this stage that the litigant begins to become vexatious and action can be taken to stop them.

An individual’s rights and access to justice are a fundamental principle of the English legal system. As such, their prevention or reduction are not taken lightly by the judiciary or wider legal system.

One of the main avenues of recourse in civil cases is to seek a Civil Restrain Order (CRO), of which there are three types of differing severity:

Limited CRO

These prevent additional applications in legal proceedings, in which the order has been made, without further permission of the court. At least two applications must be made which the court deems ‘totally without merit’ (TWM) and the order ends at the conclusion of the case to which it is attached.

Extended CRO

An increase in severity compared to a limited CRO, it prevents applications or claims being made in specified courts which ‘relate’ to the proceedings, without first obtaining permission of the judge named within the order. At least three applications must have been made which were deemed to be TWM, to prove the requisite level of ‘persistence’.

General CRO

Used only in extreme cases, and when it can be clearly shown that an extended CRO will be insufficient, these orders go even further to prevent the litigant from issuing any applications or claims within the specified courts. The difference here is the breadth of the application; it is more for when a litigant uses a scattergun approach to issuing claims in litigation, rather than confining their focus to the original claim or related issue.

It should also be understood that whilst CROs assist as a filter, they are not there to prevent a party from bringing a claim that has merit.