 |  |
|
 |
 |
 |
 |
|  | |  | |
Orders having the same effect as Grepe v Loam orders would be placed on a secure
constitutional footing if authorised by Ordinance in materially the same terms as
section 42 of the Supreme Court Act 1981, with the additional provision that
applications for vexatious litigant orders can be made, not only by the Secretary for
Justice, but also by persons made parties to vexatious proceedings or subjected to
vexatious applications.
In Ebert v Official Receiver [2002] 1 WLR 320, Buxton LJ analysed the relevant
European jurisprudence and concluded that the system for controlling vexatious
litigants under section 42 was in principle in conformity with the ECHR. His
Lordship noted that :-
"...... in an early and classic case on that subject, Golder v UK (1975) 1 EHRR 524, the
European Commission of Human Rights observed, in the course of a general survey of the
subject, that in the case of the United Kingdom vexatious litigant provisions: ‘The control of
vexatious litigants is entirely in the hands of the courts . . . Such control must be considered
an acceptable form of judicial proceedings.'"
Moreover, he pointed out that in H v UK (1985) 45 DR 281, the Commission referred
to the principle declared both in the Golder case and in Ashingdane v UK (1985) 7
EHRR 528, that the right of access to a court was not absolute, and stated (at 285) that
vexatious litigant orders made pursuant to section 42 :-
"did not limit the applicant's access to court completely, but provided for a review by a
senior judge . . . of any case the applicant wished to bring. The Commission considers that
such a review is not such as to deny the essence of the right of access to court; indeed, some
form of regulation of access to court is necessary in the interests of the proper administration
of justice and must therefore be regarded as a legitimate aim . . ."
Buxton LJ commented that such conclusion was unsurprising, adding (at §9) :-
"The detailed and elaborate procedures operated under s 42 of the 1981 Act respect the
important convention values that procedures relating to the assertion of rights should be
under judicial rather than administrative control; that an order inhibiting a citizen's freedoms
should not be made without detailed inquiry; that the citizen should be able to revisit the issue
in the context of new facts and of new complaints that he wishes to make; and that each step
should be the subject of a separate judicial decision. The procedures also respect
proportionality in the general access to public resources, in that they seek to prevent the
monopolisation of court services by a few litigants; an aim, and the national arrangements to
implement it, that the Strasbourg organs, applying the doctrine of the margin of appreciation,
are likely to respect."
|
 |
|