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It is accordingly clear that section 42 of the 1981 Act, with all its safeguards, is
capable of being operated compatibly with Art 6 of the ECHR. Indeed, as Lord Woolf
CJ pointed out in AG v Covey; AG v Mathews [2001] EWCA Civ 254, 19 February
2001, at §47 :-
"There is no doubt that it is necessary for the court to ensure that before any s 42 order is
made, art 6(1) is complied with."
In the Working Party's view, if our system for controlling vexatious litigants were
placed on the same footing, but with the addition that affected parties are authorised to
make applications for vexatious litigant orders, it would be a system which would
continue to operate in conformity with access and hearing rights deriving from BL 35
and BOR 10.
In each case where a vexatious litigant order is sought, the court would exercise its
discretion, guided by the principles developed in the international jurisprudence
discussed in Section 14
above. Thus, in general, it will plainly be legitimate to
regulate the conduct of vexatious litigants pursuant to a clear statutory rule which
authorises appropriate and proportionate limitations to the right of access to the court,
importing mechanisms for judicial scrutiny to ensure that the litigant will not be shut
out from bringing legitimate proceedings or making reasonable applications. One
could expect the courts to tailor restrictions to the vexatious conduct in question, for
instance, by imposing a leave requirement only in respect of instituting proceedings
relating to a particular transaction or business, rather than a blanket restriction against
starting any proceedings whatsoever.
The right of access to the court is not a right to abuse its process and the measured
prevention of such abuse does not negate the essence of the right. Thus, in M v United
Kingdom, Application No. 12040/86, the Commission pointed out that in most of the
contracting states, the right of access to court is regulated in respect of vexatious
litigants (among others) and that "such regulations are not in principle contrary to
Article 6 ......, where the aim pursued is legitimate and the means employed to achieve
the aim is proportionate."
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