The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I move that the Courts (Amendment) Bill (No. I of 2011) be read a second time.

Mr Speaker, Sir, this Government has, since assuming Office, placed reforms to our legal system to the forefront of its agenda and has shown its commitment to modernising the present system, reducing delays and enhancing access to justice.

The aim of this Bill is to amend the Courts Act to deal with vexatious litigation in order to prevent the obstruction of the judicial system by vexatious litigants.

The Bill accordingly provides that the Supreme Court may, on an application made by the Attorney General, declare a person to be a vexatious litigant where that person has habitually, persistently and without any reasonable ground instituted vexatious legal proceedings or made vexatious applications in any proceedings.

Mr Speaker, Sir, it has been noted that vexatious proceedings are on the rise. This has the effect of seriously undermining the judicial system and draining the resources of the Judiciary. My own Office has, in the recent past, been flooded by such cases. In fact, I am informed that some 50 cases have been instituted by a single litigant.

In its report dated October 2010, the Law Reform Commission, after analysing the law pertaining to vexatious litigation in a number of Commonwealth countries including New Zealand, Australia and India, recommended that the Courts Act be amended to enable the Supreme Court, where it is satisfied that a person has persistently started vexatious proceedings or made similar applications in any court, to make an appropriate order so as to restrain the start of such proceedings or the making of such applications.

Mr Speaker, Sir, it might, at first sight, seem inimical to the right of access to justice to provide for keeping vexatious litigants out of our Courts. However, as aptly put by Lord Clarke, then Master of the Rolls in England, in a speech delivered on 30 June 2006 and entitled “Vexatious litigants and access to justice: Past, present, future”, vexatious litigation has the capability of undermining the rule of law. If Courts are required to utilise their scarce financial and temporal resources on vexatious claims and applications, their ability to promptly deal with claims and applications that have genuine merit will be diminished. Such claims may not be heard due to lack of time or resources. If the case is heard, a judgment may then be delayed for a lengthy period of time because the Judge has to spend precious time dealing with a vexatious litigant, or with other matters that have been referred to him to hear as a consequence of vexatious litigation generally. The fact that it has often been said, from Magna Carta to Bentham, that justice delayed is justice denied does not diminish the truth of this maxim.

Further, Court resources are certainly not infinite.  As was observed in the case of Attorney General v Ebert –

“Mr Ebert’s vexatious proceedings have been very damaging to the public interest; quite aside from the oppression they have inflicted on his adversaries.  The real vice here, apart from the vexing of Mr Ebert’s opponents, is that scarce and valuable judicial resources have been extravagantly wasted on barren and misconceived litigation, to the detriment of other litigants with real cases to try.”

Controls on vexatious litigation are, to my mind, consistent with the right of access to justice for the simple reason that vexatious litigation infringes that very right. Protecting individuals from litigation that infringes the right of access to justice in itself supports that right. It does so because it enables the Court to maximise access to justice for litigants who have genuine claims.

Yet another reason to legislate against vexatious litigation is that one of the central elements of the right of access to justice is that disputes are adjudicated within a reasonable time. Delay or denial of a hearing as a result of vexatious litigants consuming disproportionate amounts of the Court’s time and financial resources represents a restriction on the right of other individuals’ very own right of access to justice.

Another no less important justification militating in favour of legislating against vexatious litigants is that it can justifiably be said that vexatious litigation does not in any event engage the right of access to justice. It does not because that right is the right to have genuine disputes carefully adjudicated on the merits. The dispute that the vexatious litigant brings is in most cases one which has already been carefully and properly adjudicated.  The vexatious claim is thus one which abuses the court’s process.  The right of access to justice is not a right to abuse the court’s process.  Restrictions placed on an individual’s ability to bring abusive proceedings cannot therefore infringe the right of access to justice.

Mr Speaker, Sir, having briefly set out the policy underpinning this Bill, I will  address the first question one will be tempted to ask, how does the Attorney General become informed about potential vexatious litigants?  Members of the public will be expected to request my office in writing to apply for an order.  There will be no formal procedure for such complaints.  The Attorney General’s Office will then undertake an analysis of the conduct of the individual concerned and the proceedings initiated by him in the past, and then decide whether or not to bring proceedings to have the person declared a vexatious litigant.

It will then, Mr Speaker, Sir, be for the Supreme Court to determine whether the person should be declared a vexatious litigant.

I shall now refer to the crucial test which is provided for, in clause 3, to determine who is a vexatious litigant. The operative words in the proposed section 197(F) of the Courts Act are “habitually and persistently.” Lord Bingham explained in Attorney General v. Banker 2000(1) the meaning of the words ‘habitually and persistently’ –

“The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of revisiting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who, if they were to be sued at all shall be joined in the same action; that the claimant automatically challenges every adverse decision on appeal, and that the claimant refuses to take any notice of or give effect to order of the Court. The essential vice of habitual and persistent litigation is keeping on and on litigating where earlier litigation has been unsuccessful and where on any rational and objective assessment the time has come to stop.”

Clause 3 of the Bill also deals with the procedure for declaring a person a vexatious litigant and it provides an in-built safeguard that a litigant will have the opportunity to be heard before he is declared to be a vexatious litigant.  I have to point out that, before a person is declared a vexatious litigant, he will be entitled to a hearing and will, therefore, be able to make representations.  In addition, it is open to a person who has been declared a vexatious litigant to prove to the Supreme Court that he has a sustainable cause of action and he will then be allowed to proceed with litigation, provided he obtains leave from the Supreme Court.

The control of vexatious litigants is thus entirely in the hands of the Courts who are duty-bound to safeguard a litigant’s constitutional rights and who will, no doubt, ensure that the powers given to the Supreme Court by dint of the proposed amendments are used to curtail vexatious litigation, uphold the rule of law and enhance access to justice.

Mr Speaker, Sir, this Bill also provides that no appeal shall lie from a decision refusing leave to a vexatious litigant to institute legal proceedings or make any application in legal proceedings in any court. This is consistent with Mauritian law in that our Constitution does not guarantee a right of appeal in all cases.  It is apposite to note that in the UK, there is similarly no right of appeal granted to a person who is refused leave to proceed with his case subsequent to being declared to be a vexatious litigant. In the UK, there is similarly no right of appeal granted to a person who is refused leave to proceed with his case subsequent to being declared to be a vexatious litigant. In Bhamjee and David Fordstick, a 2000 case, Lord Phillips, at paragraph 49, referred to the Strasbourg principles in the Belgian Linguistics where it was held that Article 6 of the European Convention on Human Rights on which section 10 of our Constitution is modelled did not guarantee a right of appeal, but that where it was granted there should be no discrimination unless there was a legitimate reason. The European Court observed in that case that –

“… Article 6 of the Convention does not compel States to institute a system of appeal Courts. A State which does set up such Courts consequently goes beyond its obligations under Article 6. However, it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions.”

Further, it is also worth noting that section 81 of the Constitution of Mauritius which provides for a right of appeal to the Judicial Committee of the Privy Council from final decisions of the Supreme Court excludes from its ambit “final decisions of a court that any application made to it is merely frivolous or vexatious” subsection (4) of section 81 of the Constitution.

It is interesting that, even at the time of framing our Constitution, it had already been contemplated that the Judicial Committee of the Privy Council could potentially face frivolous and vexatious appeals and to prevent such an abuse, our Constitution explicitly prohibited such appeals. Our aim, in introducing this amendment to the Courts Act, is guided by what already exists in our Constitution as a filter for appeals before the Judicial Committee of the Privy Council and reflects a need, in view of the numerous cases of vexatious litigation, to control vexatious litigation before our Courts and enhance access to justice.

For the sake of clarity,  Mr Speaker, Sir, I wish to add that the proposed amendment would not prevent a person from appealing against an order, under the proposed section 197F (1) of the Courts Act, declaring him to be a vexatious litigant.

Mr Speaker, Sir, we have listened to comments from the other side of the House and in order to remove any confusion, we are spelling out in the amendment to be made…

Mr Speaker: Sorry, we have not heard Members making comments…

Mr Varma: From outside the House Mr Speaker, Sir.   In order to remove any confusion rather, we are spelling out in the amendment to be made at Committee stage, which has already been circulated, that the application to declare a person as a vexatious litigant will be heard before a single Judge.  An appeal will then lie from that decision to the Court of Civil Appeal by virtue of section 3 of the Court of Civil Appeal Act.  The Explanatory Memorandum will, of course, be edited in the light of the amendment made at Committee stage.

It is only after the vexatious litigant has sought and been denied leave to institute and continue proceedings that he will have no right of appeal from the decision of the Court refusing leave. It may nevertheless be contemplated that a vexatious litigant may seek special leave from the Judicial Committee of the Privy Council to appeal from a decision of the Supreme Court refusing him leave to institute and continue proceedings.

Mr Speaker, Sir, this Bill will have the effect of enhancing the rule of law and providing better access to the judicial system to meritorious litigants. Safeguards have been in-built to provide for a right of hearing before a person is declared a vexatious litigant. By adopting this Bill, we shall be following in the footsteps of several Commonwealth jurisdictions, where legislation on vexatious litigants has been tried and tested over a number of years.

Mr Speaker, Sir, with these words I commend this Bill to the House.

Mr Virahsawmy rose and seconded

(8.03 p.m)

Mr Varma: Mr Speaker, Sir, first of all, I would like to reply to a few points raised by the hon. Leader of the Opposition.  But, in fact, I don’t understand the stand of the Opposition.  The Leader of the Opposition stood up in this House and stated clearly that he is in favour of something against vexatious litigation, having been himself a victim in the past, and now, I hear from Members of the Opposition, in his absence, that they are against a legislation to deal with vexatious litigation.  Which is which, Mr Speaker, Sir?

I would like to reply to the hon. Leader of the Opposition and also to the hon. Third Member for Constituency No. 1, when they referred to the tone in which I replied to the comments made by the Opposition.  Mr Speaker, Sir, I replied because they were doubting the good intentions of Government.  They were saying that they see the reforms being brought every week with some suspicion; whether there is a motive behind what the present Government is doing.  It is simple, Mr Speaker, Sir!  We have taken a commitment.  When Dr. the hon. Prime Minister was Prime Minister in 1995, there was the Mackay Report which came out, which shows the commitment of the current Prime Minister to reforms in the Judiciary.

Mr Speaker, Sir, the hon. Leader of the Opposition stood up in this House and said ‘yes, you have got a young and fresh Attorney General, but he has to learn.’  Mr Speaker, Sir, when the same Leader of the Opposition says that I need to chair a Select Committee on Med Point, when he suggests that I should chair a Select Committee on the exams being held by the Council of Legal Education, when a few weeks back, he stood up in Parliament and congratulated me on a Bill that I am bringing in Parliament, then I don’t have anything to learn, Mr Speaker, Sir!

(Interruptions)

I had to say that, Mr Speaker, Sir.

Mr Speaker: No, he said that your tone was vexatious.

Mr Varma: Mr Speaker, Sir, in fact, there are three points which the Opposition has raised against the Bill.  The first one is on the question of appeal.  Mr Speaker, Sir, the special leave to the Judicial Committee of the Privy Council will be there when the leave is refused by a Judge of the Supreme Court.  The Judicial Committee of the Privy Council is the master of its own procedure; it is not fettered by a local Act of Parliament.  I think this should clear the air.

They have paid a qualm about the Attorney General making the application.  Mr Speaker, Sir, have they forgotten the role of the Attorney General as regards ministère public?  When a case is heard before the Supreme Court, and they await the conclusions of ministère public, where does that go to?  Does not that go to the Office of the Attorney General?  Then, there is no problem that the Attorney General is a Member of Cabinet? When there are disciplinary proceedings against law practitioners, Mr Speaker, Sir, and the Attorney General makes the application, then there is no problem that the Attorney General is a Member of Cabinet?  When a seat of a hon. Member has to be declared vacant, then there is no problem that the hon. Attorney General is a Member of Cabinet?  Have they forgotten, Mr Speaker, Sir?  They spoke about colourable device today! They should know who was Attorney General when the Supreme Court spoke about colourable device, Mr Speaker, Sir! Who was Attorney General at that time?  We have no lessons to learn, Mr Speaker, Sir.  Let me make it very clear.  They have stated that the Attorney General should not be in party politics.

Mr Speaker, Sir, does this House know that I was a Member of the Politburo of the Labour Party for so many years, but that this year the hon. Prime Minister told me that I am Attorney General and cannot be a Member of the Politburo?  What does that mean Mr Speaker, Sir?  When hon. Members from the other side of the House were Attorney General, did they leave their party?  Did they? No, Mr Speaker, Sir! This was never the case.

Mr Speaker, Sir, coming to this House and say that this Bill was not debated at the level of the Bar Council!  Mr Speaker, Sir, I am an ex officio member of the Bar Council.  Do hon. Members here know what was discussed at the Bar Council?  I am a member of the Bar Council!  I was present, Mr Speaker, Sir, at the meeting of the Bar Council.  I think, Mr Speaker, Sir, that it is improper to quote from what was discussed at a meeting.  I don’t know who leaked the information; this is very serious, and I am going to raise the matter at the next meeting of the Bar Council because, at no point in time, did the Chairperson of the Bar Council write to me, to inform me officially that the Bar Council is against this piece of legislation.

Mr Speaker, Sir, just coming in this House, hiding under parliamentary immunity to say that some judges have spoken to me.  Mr Speaker, Sir, hon. Minister Mohamed raised that point.  Who is the Head of the Judiciary?  The Chief Justice, Mr Speaker, Sir! And if there have been any qualms from the Judiciary, they should have written to me personally, written to us and say that this Bill is not correct.  But this has never been done, Mr Speaker, Sir.  In fact, Mr Speaker, Sir, this Bill was circulated a couple of weeks back and hon. Members of the Opposition spoke to me to tell me that – well, it’s not correct that we have got the three stages of the Bill coming at the same Sitting.  They raised qualms with the hon. Prime Minister but, Mr Speaker, Sir, we have nothing to hide.  That’s why we agreed that the Bill be postponed to be ventilated.

Again, the Bill was ventilated for two weeks.  Did we receive any representations?  No, Mr Speaker, Sir!  Well, Mr Speaker, Sir, again,…

(Interruptions)

Mr Speaker:  No comment!

Mr Varma: The hon. Third Member for Constituency No. 1 spoke about the Attorney General in the United Kingdom giving independent legal advice.  What is he trying to say, Mr Speaker, Sir?  What is he trying to say?  Is he trying to say that the Attorney General in Mauritius does not give independent legal advice?  Is that what he is trying to say?

(Interruptions)

Mr Varma:  Yes, I challenge him!  Go and say it outside!  Don’t hide under parliamentary immunity!

Mr Speaker: The hon. Attorney General cannot challenge!  Continue!

(Interruptions)

Mr Varma:  I am sorry, Mr Speaker, Sir, I have to reply.

(Interruptions)

Mr Speaker: Let me inform the hon. Attorney General that if there was anything objectionable about what the hon. Member said, I would have stopped him.

Mr Varma: Mr Speaker, Sir, hon. Uteem made a number of points and I would like to reply that the right to sue, like any other fundamental rights in our Constitution, is not absolute.  It’s subject to reasonable derogations.  Of course, litigants who are persistently making an abuse of the right to sue cannot be allowed to clog the machinery of justice, Mr Speaker, Sir.

Mr Speaker, Sir, the test is laid down by Lord Phillips in the case of Bhamjee and I have already referred to it during the course of my speech.  As far as targeting, Mr Speaker, Sir, they have time and again made the point that we are trying to target someone.  But, they should come forward with concrete proof.  Hon. Members on this side of the House, Mr Speaker, Sir, have raised the point.  You can’t just come to this House and say that this Bill is meant to victimize Mr ‘X’ without mentioning who he is, what he is doing, whether he has got cases before Court, what is his current locus standi.

Mr Speaker, Sir, this Bill is not meant to target anyone.  This Bill, Mr Speaker, Sir, is meant to protect the public and everyone from vexatious litigants. Mr Speaker, Sir, don’t hon. Members on the other side of the House – many of whom are Barristers – know how many vexatious litigants we have around?  How many cases are brought, Mr Speaker, Sir, by vexatious litigants?  I can now inform the House about ten people who are vexatious litigants but I won’t do so, Mr Speaker, Sir, of course.

(Interruptions)

But, this is the case, Mr Speaker, Sir, and they clog the system by making vexatious applications and by entering vexatious cases.  Therefore, this House should be convinced, Mr Speaker, Sir, that this particular piece of legislation is not meant to target anyone.  Let’s be clear about it.  Mr Speaker, Sir, in fact, hon. Uteem spoke about a draconian measure being introduced.  Hon. Baloomoody spoke about: are we moving towards abolition of appeals to the Privy Council?  Well, Mr Speaker, Sir, this is a figment of their imagination, that is all.  Where in this Bill, Mr Speaker, Sir, where in the speeches made in Parliament today, have we targeted the right of appeal to the Privy Council?  On the contrary, we have reiterated the right to appeal to the Privy Council.  Haven’t we, Mr Speaker, Sir?

The hon. First Member for Constituency No. 14 – well again, his arguments were not as virulent as he is counterpart but still he did oppose the Bill.  Mr Speaker, Sir, the hon. First Member for Constituency No. 14 spoke about India and made reference to the report of the Law Reform Commission of India on vexatious litigation.  But, Mr Speaker, Sir, as hon. Minister Faugoo stated, there are states in India who have adopted the legislation but it has not been implemented as a whole; say, for example, in Goa, there is the Goa Vexatious Litigation Prevention Act of 2007.  It will be, therefore, my submission, Mr Speaker, Sir, that, at no point in time, are we infringing on the rights of people, on human rights.

We are not targeting anyone. This Bill is good for the proper and efficient administration of justice.

Question put and agreed to.

Bill read a second time and committed.