Stopping the Nightmare: Dealing with Vexatious Litigants in Court

Dealing with vexatious litigants can be a nightmare. One will be dragged to Court repeatedly to deal with frivolous and vexatious applications or actions. It unnecessarily clogs up the judicial system and incurs wasted expenses and time. Even worse, some are motivated by spite and malice to bore down the other party.

In such a situation, paragraph 17, section 25(2) of the Courts of Judicature Act 1964 vests the Court with the power to declare such a person a vexatious litigant. It reads:

If someone is declared a vexatious litigant, he can no longer file actions at his whims and fancies. He is required to obtain leave from the Court before filing any papers, failing which he can be cited for contempt.

Who is Considered a Vexatious Litigant?

The Courts have almost unanimously agreed that litigants who seek to reopen and relitigate concluded matters are vexatious litigants.

In Sim Kooi Soon v Malaysia Airlines System (No 2) [2011] 4 MLJ 728, the Court of Appeal expounded as follows:

“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 minor variation, is termed as a vexatious litigant.

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.”

The above passages succinctly sum up the test of which one will be declared a vexatious litigant. Further down the judgment, the Court of Appeal reprimanded Sim Kooi Soon quite harshly:

“[5] Sim Kooi Soon, you are a vexatious litigant. You keep on filing the same application one after another. You do not know when to stop. You exhibit the classic symptoms of a variant of de Clerambault’s syndrome. It is a syndrome named after a French psychiatrist, Ga tan de Clerambault who described such syndrome as ‘litigious behaviour’ (see Baruk H, Les d lires passionels in (1959) 1 Trait de Psychiatrie at pp 532–540 reproduced in Themes and Variations in European Psychiatry [1974] (editors Hirsch S and Shepherd M)). According to the French psychiatrist Baruk H, patients who undertake a series of lawsuits, the first leading to others along with numerous pleas and hearings… become threatening and insulting and often denounce magistrates, lodge repeated complaints and sometimes become dangerous. The writer further explained that de clerambault’s syndrome does not involve hallucinations. Sufferers, according to the writer, display a vehement and passionate attitude of filing unsustainable claims against others.

[6] As a vexatious litigant you ignored orders from the court. You were advised to obtain leave from the Federal Court before you pursued the matter further. You were warned about the consequences of being in contempt of court.”

Sim Kooi Soon, before being declared a vexatious litigant, had filed in total 11 review applications of the same nature with minor variations. In his applications, he made grave insinuations against a former Federal Court judge and a senior member of the bar who was also the opposing counsel. As it turned out, the allegations were also baseless, scandalous, and vexatious. To compound the atrocity, the same panel of the Court of Appeal had advised him to apply for leave to appeal to the Federal Court, rather than a review application. However, he paid no heed to the Court’s advice and filed the final review application, which was the straw that broke the camel’s back.

Further Examples of Vexatious Litigants

The English case of Lord Kinnaird v Field [1905] 2 Ch 306 may perhaps be crowned as one of the most vexatious cases in history. There, the vexatious litigant filed a total of 29 interlocutory applications. Among others, he sought to strike out the statement of claim based on the following grounds:-

• the words “Delivered the —-day of —-” appeared at the end instead of the beginning;
• the claim was printed with a margin of one inch and a half instead of two inches; and
• the number of folios was printed at the top instead of at the side.

He also applied for particulars covering almost every paragraph of the statement of claim. And none of the costs that he had been ordered to pay was complied with.

In Yan Bt Mohd Noordin (sebagai pentadbir pesaka kepada harta pusaka Hj Nordin bin Ayub @ Mat Nordin bin Yeop, si mati) v Kamal Baharein bin Nordin & Ors [2022] MLJU 2587, the Plaintiff filed an Ex-Parte originating summons (”OS”) without naming the Defendants. The Ex-Parte OS sought to set aside a previous Court order granted 8 years ago based on fraud. The Court converted the OS to Inter-Parte and found out from the Defendants that the same reliefs had been previously sought but were already dismissed. This was not disclosed in the Ex-Parte OS.

To deter a similar OS filed before another unsuspecting judge, the Court declared the Plaintiff a vexatious litigant. In its conclusion, the Court opined that the Plaintiff would have no qualms in filing a third Ex-Parte application, given that the Plaintiff, in filing the Ex Parte OS, saw it fit to conceal material facts.

In American Express (M) Sdn Bhd v Matthias Chang Wen Chieh [2012] 7 MLJ 489, the Court looked at the whole sequence of litigation before declaring the Defendant a vexatious litigant. After a summary judgment was entered against the Defendant, the Defendant embarked on a litany of appeals and applications against the decision:-

• the Defendant appealed to the Judge in Chambers, and then to the Court of Appeal, which appeals were eventually dismissed;
• pending the appeal before the Court of Appeal, the Defendant applied to set aside the summary judgment. The application was dismissed, and the motion for leave to appeal to the Court of Appeal was also dismissed;
• having exhausted all legal avenues, the Defendant commenced a new suit based on the same allegations but was struck out. The matter was then pending to the Court of Appeal;
• the Plaintiff then filed a Bankruptcy Notice against the Defendant for failing to satisfy the judgment. The Defendant sought to set aside the Bankruptcy Notice, again based on the same allegations, but was dismissed by the Senior Assistant Registrar and the Judge;
• the Defendant also initiated an action against the officers of the Plaintiff company based on the same issues and allegations; and
• a police report was also lodged based on the same issues and allegations.

In Malayan Banking Bhd v Tan Book Kiat [2021] MLJU 494, the Plaintiff obtained summary judgment against the Defendant. The Defendant appealed, but the appeal was dismissed. As the judgment was not satisfied, the Plaintiff filed a Bankruptcy Notice and thereafter, a creditor’s petition. In response, the Defendants made 15 applications and appeals – 3 before the date of the Bankruptcy Order and 12 after. Needless to say, all the applications and appeals were based on the same grounds.

Conclusion

The Courts of Judicature Act 1964 provides one of the more effective mechanisms for the Court to curb vexatious proceedings. However, it is imperative to note that vexatious litigants are not precluded from filing court actions. Instead, they must obtain leave and be subjected to more stringent scrutiny. If vexatious litigants file actions without leave of the Court, they may be sentenced to imprisonment for contempt of Court. In Hardial Singh Sekhon v Public Prosecutor [2009] MLJU 105, the late Justice Gopal Sri Ram sentenced the vexatious litigant to 8 months imprisonment for filing an action without leave.