How to clamp down on vexatious litigants

In the last few months, I have represented a defendant at the county court where a claimant has brought numerous actions against multiple parties. He admitted in open court to bringing more than 30 separate claims, all of them a few pennies below £10,000. This is, of course, the magic number since defendants will not recover their costs if the claim is below this level. 

This claimant believed that by bringing a cluster of cases at this value, he would obtain damages while protecting himself from a costs order. It would give him several bites at the apple, with different judges hearing each claim. I am pleased to say the courts rejected his approach. The claimant was told that his claims had yet to be allocated to the small claims track, therefore he would not be immune from cost consequences. So far, so good.

After a series of strike-outs, including two findings that the claims had no merit, my client successfully asked the court to grant a general civil restraint order against the claimant. This prohibits him from bringing claims in the next two years without first obtaining the court’s permission. My client was thrilled – the vexatious litigant had been stopped. Unfortunately, the general civil restraint order did not solve all our problems.

For one thing, we knew the order would not strike out the claims that are still in motion. Notwithstanding the findings of no merit and restraint order, the defendants will have to return to court to resist the same fruitless claims that had been issued previously. As if this were not bad enough, there seems little prospect of recovering the costs that have been ordered against the claimant. To date, none of the defendants have been paid their costs. There is every possibility that the claimant will go bankrupt before doing so.

In other words, we have a situation where a claimant is continuing to bring claims (albeit a finite number now), even as the defendants rack up costs. This is an injustice. Taxpayers are having to foot the bill for my client, which is a public body. Not only is this expensive, it also takes up precious court time when the courts have a huge backlog. Parties are waiting for years to see justice while a vexatious litigant draws out proceedings.

So, what is to be done? A few reforms stand out to me:

i.    Clearer signposting. Claimants should be under no illusion that if they bring multiple claims against the same parties which together climb above £10,000, they will face the prospect of paying costs, as if they had brought a single claim at this value;

ii.    An automatic review. No party should be able to bring close to 30+ claims in a short period of time without triggering a hearing to identify whether there is a prima facie case. More claims should not be issued until the first batch have been heard, unless the limitation period makes issuing necessary. This is fair to claimants as well since they should not be litigating so recklessly. Those with poor mental health are especially vulnerable under the status quo;

iii.    Once a costs order has been made against a claimant, that person’s other claims should be paused until the costs have been paid. It is unacceptable that a defendant should have to resist vexatious claims when there is a compelling case that it will never recover its costs because the claimant has a track record of not paying cost orders; and

iv.    A general civil restraint order is the most significant of its kind and it ought to have more impact. Why should a claimant, having received such an order, be permitted to continue to bring pre-issued claims?

My experience of vexatious litigants does not end there. In separate proceedings, I received another surprise. A party was suing my client for £100m. I have never seen a case of this size, nor have many of my colleagues. After making some calls, I confirmed, as you have guessed, that professional indemnity insurance provider Bar Mutual would not provide adequate cover. I did not have much appetite to increase my insurance for several years in light of this one case. If you were the sole breadwinner, you might decide that such cases pose too great a risk. This raises a question – are vexatious litigants using high-value claims to intimidate defendants and indirectly make them struggle to find representation?

In this case, a solution to vexatious litigation is more elusive. The litigant was willing to pay £10,000 to issue at the High Court. Her Article 6 right to a fair trial means her case must be heard, even if the heads of claim include such bizarre factors as £25,000 in remuneration for the emotional damage caused to her pets. We can only hope the law changes so that vexatious litigants are limited to bringing one bizarre case at a time.

Alexander Bunzl is a barrister at 4-5 Gray's Inn Square, London