Douglas v HM Attorney-General & Ors

A vexatious litigant order should be varied or discharged only where entirely new circumstances, ordinarily including a material change in the applicant’s conduct, remove the harm which the order was intended to prevent. Personal prejudice caused by the order is relevant but does not itself justify discharge. The court must assess whether the applicant’s propensity for vexatious litigation has genuinely ended. A claim is vexatious where it has little or no discernible legal basis and uses the court process in a manner significantly different from its ordinary and proper use. The order is not an absolute bar: a proper claim may still be brought with permission.

The claimant applied to discharge a vexatious litigant order made in 2006 under section 42 of the Senior Courts Act 1981. The order followed an earlier finding in 2001, after which the claimant resumed issuing numerous proceedings. She relied on remorse, professional achievements, the passage of time and alleged prejudice to her career. The court considered her subsequent applications and proceedings in England, Northern Ireland and Scotland, and whether they demonstrated a material change in circumstances sufficient to justify variation or discharge.

1. Application dismissed. The court’s task was to decide whether circumstances now made it right to vary or discharge the order, rather than to revisit the original decision. A section 42 declaration remains in force indefinitely unless a duration is specified, because potential defendants should not be exposed to unjustified proceedings merely through the expiry of a time limit.
2. The jurisdiction to vary or discharge exists, but is normally exercised only in the light of entirely new circumstances. Applying Re Baggaley [2015] EWHC 1497 (Fam), a material change in circumstances may include a proper understanding of the unacceptable nature of the previous conduct.
3. The claimant’s recent proceedings showed that her propensity for vexatious litigation remained. Vexatious proceedings have little or no discernible legal basis and subject defendants to inconvenience, harassment and expense out of proportion to any likely gain. They constitute an abuse of the court process in the sense described in Attorney General v Barker [2000] 1 FLR 759.
4. Personal prejudice caused by the order was a matter to be borne in mind, but did not remove the risk the order was designed to prevent. The claimant’s assurances and expressions of remorse were insufficient in light of her repeated litigation after earlier warnings and assurances.
5. Following Attorney General v Covey [2001] EWCA Civ 254, the protective purpose of the order justified maintaining it. An adjournment, conditions or an undertaking would not meet the justice of the case. The claimant remained free to seek permission for a proper claim and could apply again in the future if circumstances materially changed.

The judgment describes earlier proceedings leading to the 2001 finding and the 2006 vexatious litigant order, but this application was determined at first instance in the Divisional Court.