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G7. Unreasonable litigants abusing the process
| 184. | The discussion has proceeded so far on the assumption that the unrepresented litigants concerned have respectable claims. Unfortunately, this is not always the case. The court is regularly faced with litigants whose claims are without foundation, maintained unreasonably and constituting an abuse of process. Such claims are not only oppressive to those on the receiving end, they tend to soak up the court's time and resources to the detriment of litigants with legitimate claims pending. |
| 185. | The courts have been slow to exclude even such litigants from invoking its jurisdiction. The existing provisions (Note 138) for declaring someone a vexatious litigant are narrow in scope, requiring involvement of the Secretary for Justice and a cumbersome procedure. They are virtually never used. However, the constitutional right of access to the courts does not give anyone the right to misuse its processes, especially when the court's limited resources are much in demand. Accordingly, part of the discussion relating to litigants in person must concern itself with responses to unreasonable litigants. |
| 186. | The LRCWA's approach :- |
| "In spite of the courts' inherent rights to control proceedings, there is an understandable reluctance to terminate the right to litigate. The Commission recommends new legislation for dealing with litigants who use the justice system to abuse others. Unreasonable litigants are people who litigate in a manner that may abuse opposing parties and other participants in the justice system. These litigants may or may not be legally represented. They often engage in 'solicitor shopping' and excessive interlocutory and pre-trial manoeuvres. They may raise spurious claims or defences, flout time limits to cause delays, pursue unmeritorious applications, refuse reasonable settlement offers, fail to pay orders for costs and launch frivolous appeals. The conduct of unreasonable litigants impinges on the effectiveness and efficiency of the justice system and makes the process of litigation more expensive and protracted for everyone." (Note 139) | ||
| 187. | To remove such cases from the system, the LRCWA recommends that the rules be changed, expanding the grounds upon which control can be exercised by the court against "groundless or malicious" proceedings brought by such litigants, (Note 140) eg, where there has been a history of frequent issue of proceedings without cause by a potential litigant; or "unreasonable conduct" by a litigant in a particular action. (Note 141) It recommends powers to require payment of security for the other party's costs taking into account conduct in previous proceedings. (Note 142) Proper application of summary procedures to dispose of such cases is also envisaged. Many of such measures would be open to a court armed with modern case management powers. If not, consideration should be given to conferring appropriate powers on the court by a special rule. |
Notes
| 138 | High Court Ordinance, Cap 4, s 27. <back> |
| 139 | WAR - Project Summary, p 33. <back> |
| 140 | WAR - Final Report, Recommendation 213. <back> |
| 141 | Ibid, Recommendation 214. <back> |
| 142 | Ibid, Recommendations 216 and 217. <back> |
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