Do you need protection from an obsessive LIP?
Jonathan Fozard explains how solicitors can protect their clients from troublesome LIPs
What can one do when faced with a litigant (almost always a litigant in person) who repeatedly pursues plainly bad litigation in relation to the same subject matter? All too frequently the LIP is immune from adverse costs orders because they have nothing to attach; they may be genuinely impecunious or they may have cannily put their assets effectively out of reach.
The answer might be a civil restraint order (CRO). The CRO’s function is to prohibit obsessive litigants from pursuing hopeless causes at great expense to their opponents and the public purse. The court has long had inherent powers to bar troublesome or vexatious litigants but CPR 3.11 and PD 3C have codified the law on CROs in recent years. There are three species: (1) limited CROs; (2) extended CROs; and (3) general CROs. They vary in scope but the general effect is to preclude the subject from instigating litigation (in certain courts, depending on which court has made the order) without a judge’s permission.
A limited CRO restrains the subject from issuing further applications in the proceedings in which the order was made. As its name suggests, the limited CRO will often be of limited practical value; a truly obsessive litigant may launch attacks by various means.
An extended CRO is significantly more powerful; the typical order will prohibit the subject from issuing any claims or applications relating to the proceedings in which the order was made. Moreover, it is possible to have listed in the CRO specific matters which the prohibition should cover, so the applicant (who will be very well acquainted with the obsessive complaints of the LIP) can ensure that all of the CRO subject’s known obsessions are dealt with.
The rare general CRO is reserved for the most egregious cases; it simply outlaws the subject from issuing any claims or applications – full stop.
To obtain a CRO, one must be able to demonstrate that the target has made applications which are totally without merit (TWM). The threshold for a limited CRO is at least two TWMs. For an extended order the target’s TWM applications or claims must have been ‘persistent’ (persistent in this context has been held to mean at least three). The general order is reserved for cases where an extended CRO would be insufficient.
If you are faced with an obsessive litigant, consider as early as possible asking the court to record the litigant’s conduct as TWM. Judges will not always do this of their own volition (notwithstanding CPR 3.3(7), 3.4(6), and 23.12).
Remember also that other findings and behaviour traits will be relevant to the judge’s discretion in making a CRO. Look out, for instance, for determinations that the litigant has abused the process of the court or sought to re-litigate matters which have already been decided and refer to evidence that otherwise demonstrates obsessive, irrational, or vexatious behaviour.
While our clients will all hope they can avoid troublesome LIPs, CROs are worth knowing about; they are a powerful shield to protect parties from the often substantial stress and cost of having to defend themselves against an obsessive litigant.
Jonathan Fozard is a senior associate at Carter Lemon Camerons and a committee member of the Junior London Solicitors Litigation Association