To those who have required to scale (or indeed fund) that Everest of court proceedings – actions raised by “well-known” party litigants seemingly without merit - there is a procedure which affords a slight warming of the hands. As highlighted most recently in the case of HMA v Martin Frost 2006 [CSIH], Section 1 of the Vexatious Actions ( Scotland ) Act 1898 is such a provision.
As its title suggests, the Act is designed to place a check on individuals who habitually and persistently institute vexatious proceedings. That is, proceedings which have little or no basis in law with the result that a defender is subjected to disproportionate inconvenience and expense tantamount to an abuse of process of the court. The principle being that there is a need to restrict unmerited strains on the limited resources of the judicial system and thereby the public purse.
Although perhaps more akin to a passing snow-drift than a white-out in the path of such litigants, the Act entitles the Lord Advocate to petition the Court of Session to order that the would-be pursuer must first obtain leave of the court before instituting legal proceedings, having satisfied the judge that the proceedings are not vexatious and that there is a prima facie ground on which the case can proceed.
In the Frost case, the Crown successfully petitioned for such an order having satisfied the requirements of Section 1 after enquiry into the respondent’s judicial record, his conduct in previous proceedings and his sequestration status which could have had a bearing on the likelihood of any award of expenses against him being unenforceable.
Looking at the broader landscape, the court was in no doubt that the 1898 Act was compatible with Article 6 of the European Convention on Human Rights and Fundamental Freedoms (more commonly known as “the right to a fair trial”) since the order did not prevent the litigant from raising actions altogether; it required only that he should obtain leave from the court before doing so. Cold comfort for Mr Frost indeed!
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Vikki Watt
(Information posted in February 2007and may not have been updated at time of reading).