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No doubt to compensate for the shortcomings of section 27, the English and the Hong
Kong courts have asserted an inherent power, quite separate from the jurisdiction
conferred by statute and without the intervention of the Attorney-General or the
Secretary for Justice, to prevent a person from initiating civil proceedings which are
likely to constitute an abuse of the process of the court, basing themselves on J S
Grepe v Loam (1887) 37 Ch D 168, as extended by Ebert v Venvil [2000] Ch 484.
It is the Working Party's view that such a power is highly desirable but that the legal
foundations of the doctrine, both at common law and under the Basic Law, are
questionable. While the court undoubtedly has power to stop abuses of its own
process in respect of a case which has been started, quite different issues arise where
an attempt is made to interfere with a citizen's constitutional right of access to the
court in fresh proceedings. A power subjecting vexatious litigants to a requirement of
getting the court's leave before starting fresh proceedings may validly be conferred on
the court, but the better view is that this requires express legislative provision.
The Working Party accordingly recommends that legislation should be introduced to
enhance the provisions of section 27 and to put the jurisdiction now being exercised
on a sounder footing. Such legislation should in particular allow vexatious litigant
orders to be made not only on the application of the Secretary for Justice but also on
the application of the persons vexed.
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