In Personam: Are You a Serial Litigator? Are You a Serial Litigator? | In Personam

In Personam

by Choo Dee Wei
Published September 7, 2015

Are You a Serial Litigator?

On vexatious litigants.

“I’ll sue you!!!” Words used to warn, to threaten, to spark fear whether rightly or wrongly. But when used repetitively by the same person, it loses its effect, like a dog with all bark without bite.

Whilst we have not embraced a culture of suing for every single problem encountered, there are several who do. Individuals who find themselves commencing various legal suits and making the court their second home.

But at what point do these individuals transform from people exercising their rights to a creature statute has labelled ‘vexatious litigants’?

First of all, the term ‘vexatious litigants’ finds mention in the Courts of Judicature Act 1964. Section 25(2) gives additional powers to the High Court as set out in the Schedule.

Article 17 of the Schedule states as follows:-

“Power to restrain any person who has habitually and persistently and without reasonable cause instituted vexatious legal proceedings in any court, whether against the same or different persons, from instituting legal proceedings in any court save by leave of a Judge. A copy of any such order shall be published in the Gazette.”

In order words, the High Court can stop a person, who has continuously and without good cause started vexatious legal proceedings in the past, from starting new legal proceedings unless allowed by a Judge. Once a person is declared a vexatious litigant, it is gazetted.

The purpose of this power is to protect the public from abuse of the process of the courts. Lord Denning in Attorney General v. Vernazza (1960) 3 All E.R. 97 at p. 101 said:

“No man, let alone a vexatious litigant, has a vested right to bring or continue proceedings which are an abuse of the process of the Court.”

On the flip side of the coin, what about the litigant who is of the belief and view that every claim he files is legitimate? It would be unfair to akin a vexatious litigant to donning a scarlet letter but the serial litigator does find himself marked and judged. Is it warranted to curtail his rights?

It comes down to what amounts to being vexatious.

In American Express (M) Sdn Bhd V. Matthias Chang Wen Chieh [2012] 5 CLJ 794, reference was made to his Lordship Abdul Malik Ishak JCA in delivering the judgment of the Court of Appeal extempore in the case of Sim Kooi Soon v. Malaysia Airlines System (No 2) [2010] 9 CLJ 936; [2011] 4 MLJ p. 728 who said:

[1] What is the hallmark of a vexatious litigant? The claimant who sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with variations, is termed as a vexatious litigant.

[2] And a vexatious proceeding is one where the vexatious litigant had little or no basis in law and its effect was to subject the opposing party to inconvenience.

In Perak Industrial Corporation Sdn Bhd & Ors v Tan Boon Lee [2015] 6 CLJ 396, the High Court considered vexatious proceedings to be proceedings which have little or no basis in law, or at least no discernible basis. The proceedings are meant to subject a defendant to inconvenience, harassment and expense out.

It appears then that it would take several proceedings commenced without any basis before a person would be declared a vexatious litigant.

Certainly a vexatious litigant may still choose to continue filing claims after claims without getting leave of the Court. But he opens himself to possible contempt proceedings (Hardial Singh Sekhon v PP [2009] 5 CLJ 101 and Sim Kooi Soon v Malaysian Airlines System (No. 2) [2010] 9 CLJ 936).

So are you a serial litigator? For almost all of you, it’s a likely no.