Rules recently developed by Hong Kong judges to control the activities of vexatious litigants provide a good example of the common law at work in the context of constitutional rights guaranteed by the Basic Law.

This was the message today from Permanent Judge of the Court of Final Appeal Justice Ribeiro today, speaking at Hong Kong University. He said after 1997 Hong Kong's courts retained their traditional common law role of developing legal principles to meet changing social needs.

Vexatious litigants are people who persistently abuse the court's process, misusing its procedures for improper purposes or in an oppressive manner and without any viable legal basis. They pose a substantial problem.

He gave an example of one litigant who had a dispute with a bank which led to 22 different legal actions being launched between 2001 and 2004. She sued not merely the bank and its solicitors, but many others, including the Commissioner of Police, a newspaper, the Hospital Authority, the judges who had given decisions against her, the Judiciary Administrator and individual court and registry clerks and the Secretary for Justice.

Over 100 summonses were issued with at least 26 appeals from the master to the Court of First Instance and at least 30 appeals to the Court of Appeal, as well as several attempts to take the case to the Court of Final Appeal. Justice Ribeiro estimated the courts have come across a dozen different vexatious litigants since 1997, with five or six active at any one time.

Changes suggested

Legislative changes were recommended by the Chief Justice's Working Party on Civil Justice Reform to address the problem. The courts turned to common law powers within their inherent jurisdiction to prevent abuse of process as the basis for developing rules restricting the activities of persistent abusers.

The Court of Final Appeal has affirmed the constitutional and legal validity of such restrictive orders, stressing that judges must differentiate between persons seeking bona fide access to the court with genuine disputes to resolve and persons who are merely abusing the court's processes.

The courts now have power to make orders restricting the ability of abusive litigants to issue further applications or to commence fresh actions to re-litigate cases that have already been concluded.

The Chief Justice has recently issued a Practice Direction giving guidance on the new rules and how they should be operated.