Can the right to take people to the court be itself subject to judicial challenge?

In other words, if someone attempts to sue you, would you ever be able to successfully argue in the court to prevent them from doing so? (Let's exclude the obvious cases where a person is declared vexations / abusing the process and is prohibited from filing lawsuits).

Will the answer change if "attempts to sue" is replaced with "attempts to prosecute" — in jurisdictions where the right to prosecute is not exclusive to the state i.e. private prosecutions are allowed? Can the jeopardy of being prosecuted be litigated against?

The right to sue seems fundamental and untouchable, but what are the doctrines behind this?

(If the question is too broad, let's assume common law / English-centric jurisdictions).

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    Would a 'motion to strike out' (whatever it may be called in the jurisdiction) qualify? Commented Nov 11, 2019 at 22:51
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    The line isn't always as clear as you'd expect. In England, the procedure to make a company bankrupt (a Winding Up Petition) requires only that the company owes you money and has not paid you (so can be taken to be unable to pay its debts). The petition can be dismissed if the debt is "bona fide disputed on substantial grounds"; is that a matter of procedure or fact? Commented Nov 11, 2019 at 23:15
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    What do you mean by "attempt to sue?" For example, are you asking if it is possible to obtain an injunction to prevent a person from filing a lawsuit? Not just, file a motion to dismiss, but preemptively enjoin against suing?
    – user6726
    Commented Nov 12, 2019 at 1:27
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    @Greendrake: Courts tend to act on facts, not hearsay. Also, you invite infinite recursion. Could Bob sue Rob to prevent Rob from suing Bob to prevent Bob from suing Rob? Is this just a race who reaches court first?
    – MSalters
    Commented Nov 12, 2019 at 8:31
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    I've never heard of a judge barring somebody from filing a lawsuit, even if they are vexatious. Usually what happens then is that the judge requires any lawsuit to be reviewed by a judge or magistrate before it may be filed.
    – Ron Beyer
    Commented Nov 12, 2019 at 14:16

6 Answers 6


In some jurisdictions, California probably being the most well-known in the US, there are Anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes, which allow a defendant to file an anti-SLAPP claim (for sake of clarity I'm going to keep calling that person the "defendant") when the plaintiff's suit appears to have been filed for the purpose of infringing upon the defendant's rights by forcing them to bear the costs of litigation or settle the claim in order to avoid them, and itself has little merit or the plaintiff clearly does not expect it to succeed. In California, if the Anti-SLAPP claim succeeds and the plaintiff's claim is dismissed as a SLAPP, the defendant is normally awarded attorney's fees from the plaintiff. The Anti-SLAPP claim also halts discovery in order to reduce the costs on the defendant, so in effect it allows a defendant to challenge the plaintiff's right to sue them on the particular issue before the defendant has to bear the majority of costs.

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    On Last Week Tonight with John Oliver there was a recent segment about SLAPP suits: youtube.com/watch?v=UN8bJb8biZU
    – Eilon
    Commented Nov 12, 2019 at 16:39
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    The problem solved by effective Anti-SLAPP legislation is that the bar to pass a motion to dismiss is extremely low --everything the complaint alleges is assumed to be true-- causing a huge burden for those sued even in meritless cases. Effective Anti-SLAPP legislation raises the bar the complaint must overcome for case to continue. I suspect an Anti-SLAPP motion comes after grounds for dismissal have been exhausted, making this second line of defense.
    – ikegami
    Commented Nov 12, 2019 at 18:40
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    @ikegami If an anti-SLAPP motion succeeds, the plaintiff of the SLAPP is usually required by statute to pay the attorney's fees of the defendant, and possibly real or punitive damages. Motions to dismiss don't reward those by default, so I figure Anti-SLAPP is special in the context of the question because they actively punish the bringer of the claim for bringing it, not just dismiss their lawsuit. Commented Nov 12, 2019 at 18:58
  • I wasn't contracting you; just adding extra details.
    – ikegami
    Commented Nov 12, 2019 at 18:59
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    Note that the OP specifically mentioned English-based systems, where the losing party already pays the prevailing party's attorneys' fees. If that's the main point you are making, then Anti-SLAPP is only special because US is special. See American Rule
    – ikegami
    Commented Nov 12, 2019 at 19:02


A "motion to dismiss" a suit asks the Court do exactly what you say. It asks the Court to dismiss the suit as legally invalid, even if the facts alleged in the suit are correct. A motion to dismiss is usually filed in response to the initial complaint. A defendant can ask for dismissal on a variety of grounds. These range from, "this court doesn't have jurisdiction over me," to "you waited too long to file," to "you didn't state a legitimate legal basis for the suit." If the Court dismisses the suit, it can do so "with prejudice," meaning the case cannot be refiled.

A "motion for summary judgment" is related. The party that files for summary judgment says, "the outcome of this case is so obvious that we don't need a trial to declare me the winner."

If you want more information on these motions, the Findlaw articles on a good place to start:



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    I’m not sure these are what OP is asking about. In both cases, the lawsuit has already been initiated (and in summary judgment, discovery has already begun). A dismissal with prejudice, as you mention, would of course bar another lawsuit pursuing the same claims. But again, I don’t think that’s OP’s question.
    – A.fm.
    Commented Nov 12, 2019 at 0:26
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    @A.fm -- The OP says, "if someone attempts to sue you..." How can you "attempt to sue" without filing a suit?
    – Just a guy
    Commented Nov 12, 2019 at 0:35
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    I guess it’s a chicken or the egg type of question because after that happens, you’ve already been sued
    – A.fm.
    Commented Nov 12, 2019 at 0:36
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    @A.fm -- You might be right that I misread the OP. But as you point out, if I misread the OP, the question is meaningless or nonsensical, and should be removed.
    – Just a guy
    Commented Nov 12, 2019 at 0:41
  • I think that dismissal counts as "not being sued", it's exactly what I would have given as an answer, too. One may, in some jurisdictions, add "no reasonable chance of success" to the reasons. Which is applicable for the "Oh, come on! FFS." type of lawsuits that are not only unreasonable but also "unwinnable" with overwhelming certitude (though, in English-centric jurisdictions, there's almost nothing that is too absurd to be sued over, can probably successfully sue someone for bad weather or because it's tuesday).
    – Damon
    Commented Nov 12, 2019 at 16:12

Based on the comments, it appears you are interested in a mechanism for preemptively declaring that your conduct is not wrongful without waiting for someone to bring charges or a lawsuit against you.

In most common-law jurisdictions, a litigant who learned that a prosecutor was preparing charges against him, or that someone else was preparing a lawsuit against him, would have the option of bringing an action for a declaratory judgment, which asks the court to examine the facts or the parties' relationship and actions to determine the legal consequences.

In New Zealand, for instance,

Declaratory judgments are available to make binding declarations of right .... The effect of a declaratory order is to the same effect as the like declaration in a judgment in an action. It is binding on the person making the application and on all persons on whom the summons has been served, and on all other persons who would have been bound by the said declaration if the proceedings wherein the declaration is made had been an action.

The jurisdiction under the Declaratory Judgments Act enables anyone whose conduct or rights depend on the effect or meaning of an instrument, including an agreement, to obtain an authoritative ruling.

Mandic and Dohnt v The Cornwall Park Trust Board (Inc) [2011] NZSC 135 (11 November 2011)

The exact relief available through a declaratory judgment will vary from one jurisdiction to the next, but for illustration purposes, Party A might bring a declaratory-judgment action against Party B seeking a declaration that:

  • Party B is in breach of their contract, and that Party A is therefore free to stop performing;

  • Party B's patent/trademark/copyright is not valid, and that Party A is therefore free to copy without infringing;

  • Party A's proposed course of conduct is not a violation of governmental Party B's criminal or administrative laws.

Having obtained that judgment, Party A would be free to proceed, and a subsequent action by Party B would be barred as res judicata.

If what you're looking for is a mechanism to prevent a court from even allowing an opposing party to file the lawsuit or charges against you at all, there probably isn't any way to do that.


If you are thinking of an action that can be taken beforehand, a declaratory judgement might be what you are looking for. Taking the example from the article: If company A is producing something and company B thinks this is infringing on one of their patents, company A does not have to wait for B to sue them. Instead they can ask a court to declare that they are not infringing and thus prevent B from suing them. Of course to do so, A would have to present the same evidence that they would have needed to win if B actually had sued them, if not more.

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    A declaratory judgement doesn't prevent B suing A. Of course if they do, a motion to dismiss with prejudice is very likely to succeed. Commented Nov 12, 2019 at 9:13

Currently, yes.

In New Zealand, when a private prosecutor attempts to file charges against an alleged criminal (proposed defendant), they may be rejected by a judge (the defendant may not even be aware at all).

The prosecutor then attempts to challenge the rejection by way of judicial review in a higher court (a separate civil proceeding against the court that rejected charges). At this stage the proposed defendant may be ordered to join this proceeding as a party (even if they do not ask to) — as ruled in this judgment of 18 July 2019. If joined, the defendant would effectively argue against the jeopardy of being prosecuted.

(The judgment is now pending application for leave to appeal to the Court of Appeal, so it is not totally impossible that this answer will change).


The first level that a court case has to pass is that it must make some claim that the defendant did something that they shouldn’t do. So if plaintiff says to the judge “defendant does something I don’t want them to do, please stop them”, and the judge says “what you claim is something the defendant is absolutely allowed to do”, then the judge can throw out the case before it even starts.

The next level is a summary judgement. If the judge says to the plaintiff “even if we assume that all the facts that you claim are true, you still have nothing that proves any wrongdoing by the defendant”, then the judge will make a summary judgment and plaintiff loses the case.

If the case passes these two hurdles then the plaintiff and defendant will have to give evidence.

  • Every sentence in this answer is incorrect.
    – bdb484
    Commented Nov 12, 2019 at 21:10

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