Several people have asked me whether a particular repeat litigant could be declared a vexatious litigant, in light of their recent decision to appeal an adverse High Court ruling. My nascent tweet thread was getting ridiculously long, so it became this blog post instead.
The short answer is: no. The particular repeat litigant cannot be restricted from commencing or continuing a civil proceeding.
For the longer explanation, read on.
The power to restrict someone from commencing or continuing a civil proceeding (commonly called a vexatious litigant order) is now in section 166 of the Senior Courts Act. Similar powers are also now in other places, such as the District Courts Act, but they aren’t fundamentally different.
To declare someone a vexatious litigant, the person must have been involved in at least two proceedings that were "totally without merit".
The recent decision, in which an appeal has been announced, was not totally without merit. In fact, the reason there is to be an appeal is because the claim was so meritorious that it was successful.
Many of the claims involving the particular repeat litigant are cases the repeat litigant is defending, not cases they commenced. A vexatious litigant order only restricts you from suing others; it doesn’t stop other people suing you.
The current proceeding is one the particular repeat litigant originally commenced. However, the announced appeal relates to a cross-claim brought by the person who was sued. As noted in the High Court judgment, by the time the case got to trial, the reason for the trial was in reality, this cross-claim, the particular repeat litigant having withdrawn a claim for monetary damages, and offered to settle both claims including by paying $30000 toward their legal fees.
That said, without an agreement to settle, both claims went to trial, the particular repeat litigant only asking for the Court to rule there was defamation, and the person originally sued asking for monetary damages for defamation.
Neither of these claims was totally without merit. In fact, both succeeded.
This presents an insurmountable problem in using this proceeding as the basis for an order restricting the repeat litigant from commencing or continuing a civil proceeding.
You’re not a vexatious litigant if you win, and you’re not a vexatious litigant if you lose a claim someone filed against you.
And, if you lose a claim (or in this case, a cross-claim) someone brought against you, you get to appeal. In fact, you would still get to appeal such a case even if you had already been declared a vexatious litigant. Usefully, however, there are no witnesses in an appeal, and the parties don’t even have to turn up!
PS I have avoided names for a reason, and for similar reasons, have not opened this post for comments