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(c)
Development of the Grepe v Loam jurisdiction
The 1981 Act has retained the requirement that application for a vexatious litigant
order has to be made by the Attorney-General. However, basing itself on the decision
in J S Grepe v Loam (1887) 37 Ch D 168, the English Court of Appeal in Ebert v
Venvil [2000] Ch 484, has asserted the existence of a power, said to reside in the
Supreme Court's inherent jurisdiction, quite separate from the jurisdiction conferred
by the Act and without the Attorney-General's intervention, to prevent a person from
initiating civil proceedings which are likely to constitute an abuse of the process of the
court.
It is the Working Party's view that such a power is highly desirable. Indeed, the
English Court of Appeal's lead has been taken up by the Hong Kong courts.
However, the Working Party is concerned, with respect, as to the adequacy of the legal
foundations of the new doctrine both as a matter of common law and under the Basic
Law. It is therefore necessary to examine the basis of what has become known as the
"extended Grepe v Loam order".
The report of the decision in J S Grepe v Loam (1887) 37 Ch D 168, contains no
discussion of principle. It occupies less than a page in the Law Reports. The
applicants in two actions concerning the same property had made repeated
unsuccessful attempts to set aside judgments obtained against them after trial. After
the Court of Appeal dismissed the latest attempt as "wholly unfounded", Counsel
asked for an order preventing repetition of such applications without leave of the
court. After referring to an unreported case
where such an order had been made, the
court duly made an order in the following terms :-
"That the said Applicants or any of them be not allowed to make any further applications in
these actions or either of them to this Court or to the Court below without the leave of this
Court being first obtained. And if notice of any such application shall be given without such
leave being obtained, the Respondents shall not be required to appear upon such application,
and it shall be dismissed without being heard."
Notes
Tse Jeekeen v HK Alliance in Support of Patriotic Democratic Movement of China [2000] 2 HKC
339; upheld in the Court of Appeal: (Unreported) CACV246/2000, 27 October 2000; Chan Wai
Wah, Lily Ann v Chan Sai Lun, Henry et al, (Unreported) HCMP2921/2001, 31 July 2001; Ng Yat
Chi v Max Share [2002] 3 HKLRD 735.
Suir v Newton, 9 June 1886.
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