Managing Litigants: Court Powers and Defendant Options

Shilpa Mathuradas

How can the court control a litigant?

Most people wish to live out their lives without the need to face litigation of any sort. Most of us law abiding citizens have little to do the law besides when purchasing a property and when making a Will.

However there has been a rise in litigants acting in person given the reduction in firms providing legal aid. Many litigants are not able to provide the advice they need to ensure what they are claiming is indeed a claim that could be made. However, there are always those people who will see themselves as constant victims and feel the only way justice can be achieved is through the court system to get their day in Court. Of course, if you inadvertently become the opponent to such a litigant by reason of being a neighbour, landlord or tenant then you could be forced to defend an action which although unmeritorious on the whole may be permitted by a judge to proceed.

What options does a Defendant have when faced with claim from such a litigant?

Strike Out

Firstly, whilst it may be inevitable that you will have to succumb to the legal costs of defending such an action, it may be that there is sufficient merit to stop the claimant’s case in its tracks by persuading the court that it should be struck out. The Court has the power to strike out a person’s statement of case where it appears to the court that:

1. Where the statement of case discloses no reasonable grounds for bringing a claim;
2. Where the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings or
3. Where there has been a failure to comply any specific order or court direction.

Summary Judgement

You may apply for summary judgement, this may be an option if the Court is reluctant to make an order striking out the claim. A summary judgement application provides you with the opportunity to have your case heard at an early stage usually by virtue of a shorter hearing and if successful will save on the time and expense of a full and longer trial. The burden of proof in a summary judgment application is on the applicant who must show that the other party has no real prospect of success at trial and that there is no compelling reason why the case or issue should be disposed of at trial.

Security for Costs

If you are a Defendant to any proceedings it may be possible for you to apply for an order for security of costs. An order for security for costs offers a protection to a party (usually a defendant) from the risks of their opponent not being able to pay the party’s legal costs if ordered to do so. The order will usually require the opponent to pay into court but security can be provided by other means for example the provision of a guarantee or bond against which the winning party can subsequently enforce an order for costs. The court will direct the manner in which the security must be given when it makes the order. This option may do little to get end the claim but will give you some comfort that if you are successful that a proportion of costs will be recovered. Further, if a party is unable to make payment into Court, then they will be prevented from progressing their claim.

Civil Restraint Order

If however you are faced with a vexatious litigant, you may need to consider a civil restraint order. This is available where a litigant persistently issues or makes claims that are totally without merit. There are three types of civil restraint order – limited, extended and general. There is no formal definition of a vexatious litigant but generally a vexatious litigant is usually an individual who

• Brings repeated litigation obsessively despite clear judicial determination of the issues..
• Ignores orders

The actions of a vexatious litigants are likely to waste court resources and they cases put a financial and emotional pressure on the person they are litigating against. A civil restraint order will restrain that person from making claims or application in proceedings without the permission of the court.

You can make an application for a for a civil restraint order with supporting evidence and with a full procedural history pointing out when the court had ordered a claim or application completely without merit. Alternatively, a court may make such an order of its own initiative.

Apart from a civil restraint order, there is also a separate statutory jurisdiction known as section 42 order under the Senior Courts Act 1981. This is considered to be more serious and intrusive than a civil restraint order. The court power under this provision is considered to be draconian and should be exercised with great care. An application under this provision however must be made by the Attorney General and is heard by the Divisional Court. A litigant who is subject to a section 42 order cannot bring proceedings without the permission of the High Court and therefore it is no wonder that such applications are incredibly rare.

Facing a litigant in person brings with it many challenges but there are certain actions that you can take to protect your position should this happen. Although this will put financial and emotional; pressure on any litigant, it is particularly gauling when you are at the receiving end of such action.

How Can We help?

If you have any quires on the above, please contact our Property Litigation Team by:

• Filling in our online enquiry form below; or
• Call us on 020 7485 8811