The problems with the current approach
16.3In Issues Paper 29, the Law Commission identified a number of problems with the current regime, which were largely confirmed by submitters. These included that:
(a) section 88B is a remedy of last resort, and the threshold for intervention is high;
(b) the current test does not take into account interlocutory applications, and its position on appeals is unclear;
(c) there is little flexibility as to remedy – as the New Zealand Bar Association described it, the orders available to the High Court require a rigid “all or nothing” approach, which does not allow the Court the flexibility to impose controls appropriate to particular circumstances;
(d) only the Attorney-General (or, as is the case in practice, the Solicitor-General) may apply for an order under section 88B, making the remedy less accessible; and
(e) only the High Court has the power to make an order.
16.4In Issues Paper 29 we also outlined the graduated system of civil restraint orders that has been implemented in the United Kingdom. These start with a limited order, which operates only to prevent future applications in the particular proceedings. The next step is an extended order, which stops actions involving, relating or touching upon the proceedings. The final level is a general order, which restrains the party from issuing any civil claim or application. At all levels, the party can still obtain leave to bring a claim.
16.5The Commission asked whether New Zealand should adopt a similar approach. In our view, the chief advantage of such a system is that it would allow for a more proportionate response to litigants who persistently bring vexatious proceedings. This would not only be consistent with the protections in the New Zealand Bill of Rights Act 1990, but it might also allow intervention at an earlier stage, rather than as a very last resort. We noted in Issues Paper 29 that we expected such a system would replace, rather than supplement section 88B of the Judicature Act 1908.
16.6All submitters who commented on this part of Issues Paper 29 supported the move to a graduated system of orders.
16.7The Senior Courts’ judges agreed that section 88B is no longer adequate, and there should be a move to a system allowing for more flexible, tailored solutions. However, unlike the other submitters, the judges suggested that section 88B should still be retained, as a measure of last resort. They noted that, in the United Kingdom, the graduated civil restraint order system sits alongside a more general power to restrain vexatious proceedings, set out in section 42 of the Senior Courts Act 1981 (UK).
16.8While this is correct, we note the United Kingdom provision extends to criminal proceedings, so in fact their section contains powers additional to those set out in the Civil Procedure Rules.
16.9On the other hand, the Bar Association submitted it would prefer not to retain section 88B, but rather to have only one source of jurisdiction in the new Courts Act. It considered “a new statutory regime adopting a graduated system, but absorbing some elements of section 88B, would work well.”