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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.
Footnote
1 M Taggart "Alexander Chaffers and the
genesis of the Vexatious Actions Act 1896" (2004) 63(3) CLJ
656-684
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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