QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
MR JUSTICE PITCHERS
| H.M. ATTORNEY GENERAL
|- and -
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Martin Soorjoo (instructed by Luqmani Thompson) for the Respondent
Crown Copyright ©
Lord Justice Auld :
The case for the Attorney General
The case for Mr Pepin
"36. Quite apart from the familiar remedies available under CPR 3.4 there are now at least three techniques available to a court when concerned with actions or applications which are utterly devoid of merit (i) It may make an order striking out the action or application of its own initiative under CPR 3.3; (ii) It may make a Grepe v. Loam order … to the effect that no further applications in that action may be issued without the permission of the court; (iii) It may make an extended Grepe v. Loam order so that the range of activities covered by the order is extended to embrace the institution of separate actions concerned with the same subject matter. If all these steps prove to be of no avail, then resort has to be made to the more severe restraint embodied in a section 42 order."
"54. In conclusion, the nuisance described in Bhamjee v. Forsdick  EWCA Civ 799 is now such that we consider that the time has come when the courts should make use of their inherent jurisdiction to control it. Strasbourgh jurisprudence requires the responses of the courts to be proportionate, and we consider the two-year civil restraint orders of the type we have described in this judgment represent the kind of step-by-step process approved by Strasbourg jurisprudence which may ultimately end, if the vexatious litigant's conduct is not only persistent but also habitual, in the making of a long term section 42 order. The inherent jurisdiction of the court has always existed side by side with its rule-derived jurisdiction (see now CPR r.3.1(1)), and the rules committees will no doubt wish to consider in due course whether it would be desirable to exercise this rule-making powers in this regard. All we are doing in this judgment is to provide a modern incarnation of the protection described by Bowen LJ in Willis v. Earl Beauchamp  11 PD 59,63 in these words:
'the rules … do not deprive the court in any way of the inherent power which every court has to prevent the abuse of legal machinery which would occur, if for no possible benefit the defendants are to be dragged through litigation which must be long and expensive.'
Today it is also the resources of the courts themselves that require
"… The hallmark of a vexatious proceeding is … that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process."
"… The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when any rational and objective assessment the time has come to stop."
"35 … In what follows we must not be taken to be excluding the possibility that other forms of order may be made if the situation seems to demand it. For instance, it may on occasion be thought appropriate to direct that permission to make an application or to institute an action will only be considered if an advocate with higher court rights of audience considers there is merit init, or that the requisite application in the High Court should be made to a master in the first instance. The possibilities are unlimited. What is important is that the remedy should always be proportionate to the mischief that needs remedying."