In terms of s. 101(1) of the Courts Reform (Scotland) Act 2014, the Inner House of the Court of Session may make a vexatious litigant order if satisfied that a person has habitually and persistently, without any reasonable ground for doing so: (a) instituted vexatious civil proceedings; or (b) made vexatious applications to the court in the course of civil proceedings (whether or not instituted by the person).

There clearly has to be a pattern of conduct in raising or conducting litigation in a vexatious manner.

The critical question is whether the conduct in question can be classified as ‘vexatious’. Delivering the opinion of the court in the petition by the Lord Advocate for a vexatious litigant order against Aslam the Lord Justice Clerk stated:

The court adopts a two stage test in determining whether to grant such an order. First, it requires to be satisfied that the s. 101(1) test has been met. Secondly, it requires to be satisfied that it is in the interests of justice to grant the order.

Such an order interferes with the rights of a citizen to access the courts. However, the interference is limited and designed to prevent abuses of court processes. The order does not prevent a person from raising court actions, simply that they have to satisfy an Outer House judge that there is a reasonable basis for raising the proceedings.