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While the section correctly recognizes the importance of such safeguards, there is
much force in the criticism that it lacks the flexibility needed to tackle vexatious
litigants.
(a)
It may, for instance, be thought unnecessary to have the double layer of
safeguards involving both the Secretary for Justice and the court.
(b)
Moreover, leaving it to the Secretary for Justice may be ineffectual. Vexatious
litigants are often persons obsessed, quite capable of issuing numerous
proceedings and numerous applications within each proceeding, forcing the
various defendants to incur significant effort and expense and cluttering the
court's diary, before the Secretary for Justice can be expected to intervene. The
other parties are often most directly affected by the litigant's oppressive
behaviour, but section 27 makes no provision for them to apply for protection.
(c)
The section's exclusive focus on the habitual and persistent institution of
groundless and vexatious legal proceedings fails to take into account the fact
that abuse can and often does come in other forms and not merely by starting
multiple proceedings. Thus, there have been cases where the vexatious litigant
has issued a single action but has progressively applied to join a series of well-
known personalities as parties. It is also common for such litigants to issue a
large number of unwarranted summonses within an existing case, each of which
has to be dealt with by the court and by the other party. One comes across
litigants who refuse to accept that they have lost a case and who therefore make
repeated unsuccessful attempts to set aside the relevant judgment or otherwise
to re-open a particular set of proceedings.
Notes
For a discussion of the role of the Attorney-General in relation to vexatious litigants in England and
Wales, see AG v Covey; AG v Mathews [2001] EWCA Civ 254, 19 February 2001, per Lord Woolf
CJ, at §48.
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