Issue 46 September 2009 - Current Awareness, Vexatious Litigants

VEXATIOUS LITIGANTS - Lord Advocate v McNamara [2009]
CSIH 45
The Lord Advocate sought an order against Mr McNamara in terms of s.1 of the Vexatious Actions (Scotland) Act 1898 in respect of four litigations. The petitioner contended that the litigations were vexatious in nature. Mr McNamara disputed this and also argued that to grant an order under the Act would violate his rights under art.6 of the ECHR in that it would deny him a fair hearing of the cases.
Held:Petition granted.

(1)There was no incompatibility following the decision of the Court of Appeal in Bhamjee v Forsdick [2004] 1 W.L.R. 88 at [16]–[17] where that Court said: “16.... It is now well settled both at common law and under Strasbourg jurisprudence that a court has power to regulate its affairs in such a way that its processes are not abused. The governing principles are set out clearly in the judgments of the European Court of Human Rights in Golder v United Kingdom (1975) 1 EHRR 524, 536, 537, paras 36, 38-39, Ashingdane v United Kingdom (1985) 7 EHRR 528, 546, para 57 and
Tolstoy Miloslavsky v United Kingdom(1995) 20 EHRR 442, 475, para 59. These cases proclaim the message that the right of access to the courts may be subject to limitations in the form of regulation by the state, so long as two conditions are satisfied: (i) the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired; (ii) a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. 17 In H v United Kingdom (1985) 45 DR 281 the European Commission of Human Rights applied these principles when it decided that an order refusing the applicant leave to bring an action by virtue of an earlier order made against him under the Vexatious Actions (Scotland) Act 1898 did not constitute an arguable violation of his Convention rights. Indeed, it said, at p 285, that ‘some form of regulation of access to court is necessary in the interests of the proper administration of justice and must therefore be regarded as a legitimate aim’.”
(2) Further, as the Commission noted in H v United Kingdom at 285, the order made under the 1898 Act did not limit the applicant’s access to court completely, but provided for review by a senior judge of any case the applicant wished to bring. Such a review was not such as to deny the essence of the right of access to court; it had a legitimate aim; and it was not disproportionate to the aim pursued.
(3) Having determined that no issue under art.6 arose the Court found that on the facts the petitions should be granted. ​