It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action.
Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender.
In liberal democratic jurisdictions, declaring someone a vexatious litigant is considered to be a serious measure and rarely occurs, as judges and officials are reluctant to curtail a person's access to the courts.
These legal actions occur[dubious – discuss] in some countries of the former British Empire, where the common law system still remains: Australia, Canada, Ireland, New Zealand, UK, and US, which are specified below.
[2][3] The first such law outside the British Isles, the Supreme Court Act, 1927 was passed in Australia nearly thirty years later.
[6] Under the Constitution Act, 1867, section 92(14),[14] each province is vested with the power to enact and apply laws relating to the administration of justice within its own territory.
Under section 46 of the Code of Civil Procedure,[17] all judicial courts and judges in Quebec are vested with "all the powers necessary for the exercise of their jurisdiction".
As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law.
As the courts's decisions have shown it, the authority to declare a litigant as vexatious is directly tributary to the power conferred by section 46.
Among them, there are: Nguiagain v. Commission de la fonction publique,[19] in which the judge rejected the plaintiff's motion for a mandamus to enjoin his union to revise the grievance that he had filed on the grounds that the motion was groundless and abusive; De Niverville c. Descôteaux,[20] where an injunction was rendered declaring the respondent, disbarred lawyer Descôteaux, as a vexatious litigant due to the multiple unfounded and frivolous actions that he had sought against the plaintiff De Niverville; and in Fabrikant v. Corbin,[21] a motion to declare the plaintiff Valery Fabrikant as a vexatious litigant was granted to the defendant, Corbin.
As per section 90 of the Rules of Practice of the Superior Court of Québec in Civil Matters,[22] such litigants are now indexed in a registry kept by the Chief Justice in the judiciary district of Montreal.
Lawyer and author Claude Duchesnay has reported in May 2003 that a document on the Quebec attorney general's intranet contains the name of 58 persons who must obtain permission prior to instating proceedings before the courts.
[27] In New Zealand a person may be declared a vexatious litigant by a High Court Judge on the application of the Attorney-General.
A person subject to a criminal proceeding order may not lay information before a justice of the peace or prefer a bill of indictment without leave of the High Court.
In relation to criminal proceedings, the High Court will only grant leave for the laying of an information or for an application for leave to prefer a bill of indictment where it is satisfied that the institution of the prosecution is not an abuse of the criminal process and that there are reasonable grounds for the institution of the prosecution by the applicant.
[36] As of 2007, several states have vexatious litigant laws — California, Florida, Hawaii, Ohio, and Texas.
[38] Unless represented by an attorney, persons on the list may not file any new litigation in California without first obtaining permission from the presiding judge of the court.
Under California Code of Civil Procedure § 391.7(a), any vexatious litigant who disobeys the prefiling order may be punished for contempt of court.
"[43] The moving party, in addition to demonstrating that the plaintiff is vexatious, must show that the case has little chance of prevailing on the merits.