Frivilous Vexatious & Abuse

Power to Strike Out

Although there is a constitutional right of access to the court ,it does not include the right to take unmeritorious cases which are vexatious,  an abuse of process or bound to fail.

The court rules provide for power to strike out pleadings (claims and defences) which  disclose no reasonable cause of action (or defence), or which are frivolous or vexatious.

The court may strike out matters in pleadings on the grounds that,

• discloses no reasonable cause of action,
• amounts to an abuse of the process of the Court,
• is bound to fail, or
• has no reasonable chance of succeeding.

The court also has an inherent jurisdiction to strike out or suspend proceedings where it appears from the evidence before it, that are frivolous vexatious or bound to fail.

Approach

The court in considering an application to strike out the claim or defence may have regard to other evidence than the pleadings themselves, including affidavit evidence adduced on the application. If there is a conflict as to facts, this will rarely be a basis for striking out proceedings. This should  be determined in the trial.

The application to strike out is based on the assumption that the facts pleaded or claimed are true. The extent which is appropriate to consider and assess the evidence on a motion to dismiss, is extremely limited. The court can consider whether the inferences which are claimed to follow give rise to a reasonable cause of action or claim, can be justified.

Where the legal rights of the parties are governed by documents, the court may examine these documents to consider whether the plaintiff’s claim is bound to fail. It would have to consider whether there is other relevant evidence. If the only evidence is written or documentary evidence,  the courts can look at the evidence to see if there is a basis which could support the claim made.

It may be able to resolve straightforward issues of interpretation on a summary application without the risk of injustice. There must be no factual dispute regarding the validity of the documents themselves. The documents must be the entire agreement between the parties, and this must be accepted. The document must be capable of being accepted without anything further.

The court order to strike out proceedings is to be sparingly exercised and employed only where it is clear that the proceedings are bound to fail rather than just very weak. A claim may be struck out where, on the basis of the undisputed facts, it is unsustainable and bound to fail.

The court has very limited jurisdiction. If it is possible to put forward and establish facts at trial that could cause the claim to succeed,  this is likely to be sufficient to defeat the application to strike out the pleadings.

The court considers whether it was proper to bring the proceedings. This may be considered in light of the claim. The incontrovertible evidence may mean that the proceedings of the claim or defence are bound to fail.

Abuse of Process

Separate to the above jurisdiction the courts have power to strike out proceedings or the defence on the basis that it is an abuse of process. The courts may strike out proceedings as an abuse of process, although they will not readily do so.The courts uphold the integrity of the legal system, by refusing to mandate that which amounts to an abuse of the process.

Generally, the application may only be made after the pleadings have been closed, so that the respective cases are identified. If a party delays a significant length of time where he could have taken steps, this will tend to make it less likely that the proceedings will be struck out.

The power is to be exercised sparingly. It is part of the court’s power to preserve the integrity of its own process and procedures.

Conduct of Proceedings

What is or is not an abuse will depend on the circumstances. An abuse may take different forms. It may be shown that the plaintiff has been guilty of deceit or gross misconduct in conducting the proceedings.

An abuse of process may arise from the way in which proceedings are conducted. The deliberate exaggeration of the claim may be a basis for striking out proceedings as an abuse of process. However, a person who has suffered personal injury is not dientitled to damages merely because of exaggeration, even fraudulent exaggeration, at common law. However, the Civil Liability and Courts Act makes specific provisions in this regard.

The court may have regard to the manner in which the proceedings are conducted. Proceedings conducted in a wholly inappropriate manner, may amount to an abuse of process. A deliberate exaggeration in a claim may constitute an abuse.  The exaggeration may be designed to exert pressure in order to achieve an improper purpose.

Improper Purpose

A claim may be struck out if brought for an improper purpose, such as harassment or oppression of the defendant. This may arise where the same or similar proceedings have already been brought, where issues are rolled forward into subsequent actions, where unsuccessful appeals have been taken, where costs have not been paid or where parties have blatantly and persistently failed to comply with court orders.

An abuse of process implies that the proceedings are being used for some purpose other than for the purpose of success in the claim. They may be used tactically, or to force a course of action outside the ambit of the legal claim. It may be an abuse to pursue proceedings which do not benefit the plaintiff but cause detriment to the defendant.

Proceedings have an ulterior motive where they seek a collateral advantage beyond what the law offers or are undertaken for a purpose which the law does not recognise as legitimate. They may be struck out as an abuse of process.

A claim that appears to be proper in form may be an abuse of process if they are brought for a purpose which is extraneous. An abuse of process can arise in  a wide range of circumstances.  It may be applied in cases where matters have already been adjudicated but are not strictly “res judicata” (barred by final determination).

Where proceedings are taken for tactical reasons to  discommode a rival, this may constitute and abuse. The courts may regard an action as an abuse of process where there is no tangible benefit available to the plaintiff and the principal purpose is to inflict detriment on the defendant.

Vexatious

The courts have inherent jurisdiction to strike out claims that are vexatious.   Proceedings may be vexatious or frivolous where there is no reasonable chance of success. This being so, it is frivolous to bring the claim and the burden imposed upon the defendant makes it vexatious.

Proceedings may be vexatious

• if they involve bringing an action to determine an issue which has already been determined
• where the action is bought for improper purposes including harassment and oppression of the parties for purposes other than the assertion of legitimate rights
• where proceedings are repeated especially where the person instituting the proceedings has failed to pay the costs of the successful party
• where the respondent persistently takes on patently successful appeals from decisions.

No Reasonable Basis

The court may strike out individual claims or pleadings on the ground that it discloses no reasonable cause of action or defence or in any case where the claim or defence is frivolous or vexatious.  There is separate jurisdiction which may be applied to part of pleadings, as opposed to the entire pleadings and case. The power may be exercised, where the claim as pleaded, has no legal basis and gives rise to no legal remedy.

The courts have inherent jurisdiction to strike out claims that have no basis. The courts will not readily strike out claims, if there is any reasonable basis.  The courts acknowledge that the facts as disclosed at the trial, may put a different complexion on the pleadings. If pleadings may be corrected or amended so as to form a reasonable basis of claim, the courts will be usually willing to make an appropriate amendment.

The courts may look beyond the actual pleadings and seek evidence on affidavits or otherwise in relation to the matters in dispute. The fact that the claimant’s evidence may be weak is not relevant in this context.

If the case as pleaded could succeed if proved, the jurisdiction is not available.  The power will only arise where the claim would inevitably fail, even if proved as pleaded.If the claimant has no reasonable chance of success or if it the claim would not confer any tangible benefit if successful, the courts may exercise its jurisdiction to strike out the claim.

Serial Vexatious Plaintiff

Where a person habitually and persistently institutes vexatious or frivolous civil proceedings, courts may use their inherent jurisdiction to make an order prohibiting the institution of proceedings by that person without the leave/consent of the court.  These are referred to as “Isaac Wunder” orders, after a 1960s serial plaintiff.  The orders protect citizens from unjustified, unnecessary harassment and expense by persistent litigants.

Such orders are only made in very exceptional circumstances.  The court must conclude that its processes are being abused.  Where a person institutes multiple claims on multiple occasions without any justification, an order may be made.

It may be made against the person and connected parties, so that he may not institute proceedings indirectly through them. The order will only be granted where it is necessary and where the person concerned has habitually and persistently brought vexatious or frivolous claims. The courts will look at the entirety of the circumstances.