When litigants in person are a nuisance

Family Law|April 24th 2015

As regular readers of this blog will know, we have written a lot over the last few years on the topic of ‘litigants in person’. This legal term refers to people who, sometimes through choice but usually through economic circumstance, appear in a court without a lawyer representing them.

Thanks to the drastic cuts in legal aid implemented two years ago, the number of litigants in person (LIPs) appearing in the family courts has increased dramatically, slowing down hearings, losing cases and – ironically, given the governments’ motivation in introducing the cuts in the first place, increasing costs.

Much of the discussion surrounding LIPs frames them as victims – because that it is what they usually are, forced to struggle through confusing and intimidating court procedures with little guidance or support. But there is another side to litigants in person (LIPs), a darker side. Freed from the constraints of a legal costs bill, a sufficiently determined LIP with time on his or her hands can keep on returning to the courts, filing application after application and making claim after claim, even if these have no legal merit – the classic ‘vexatious litigant’ in other words, in a slightly different form.

We saw an example in the case of K v K, which we reported here yesterday. This featured a father caught up in a bitter divorce filing multiple applications for contact with his children and a reconsideration of his divorce settlement.

Time after time his filings were rejected, dismissed as ‘totally without merit’, only for him to return with fresh ones. The man was eventually made subject to a so-called ‘barring order’, under section 91(14) of the Children Act 1989. This states that:

“On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”

Such orders are intended to protect children from the uncertainty and emotional turbulence generated by parents who insist on returning to the courts again and again in pursuit of some perceived victory.

The father in question then turned his attention to his ex-wife and the terms of their original settlement, making further applications. The case trundled inexorably onwards until it finally reached the High Court. You don’t have to read too far between the lines of the resulting judgement to detect a clear tone of impatience with the father’s multiple filings.

The President of the Family Division himself, Sir James Munby, briskly declared that the man’s latest legal catapults contained “nothing of substance” and were simply efforts to “replicate arguments” concerning matters which had already been dealt with in previous hearings.

Sir James continued:

“This further attempt by the father to re-litigate, yet again, matters which have already been concluded against him, demonstrates not merely the continuing need for the section 91(14) order but also the need for a corresponding order to prevent him making further applications without permission in relation to the financial matters dealt with…”

The corresponding order in question turned out to be a relatively rare Grepe v Loam order. Named after a case dating all the way back to 1887, these are also sometimes referred to as ‘civil restraint’ orders. Simply put, these prohibit the issuing of further legal applications during a case without the permission of a named Judge. If the person persists, the application will be classed as dismissed automatically and the person targeted by the application will have no need to respond.

In K v K, the nominated Judge was to be the President himself. Making the order, Sir James quoted from the 2003 case Bamjee v Forsdick. In this, the then Master of the Rolls Lord Phillips set out in vivid terms the nuisance sometimes caused to the court process by aggrieved litigants:

“We must stress that in many, if not most, of these cases the litigant in question has been seriously hurt by something that has happened to him in the past. He feels that he has been unfairly treated, and he cannot understand it when the courts are unwilling to give him the redress he seeks. Judges must, as always, listen to his case carefully and be astute to see whether there is any point of legal merit in what he is saying to them. And if they are unable to help him, they must give their reasons clearly, in language he will understand. In most cases, particularly after an unsuccessful appeal has been handled in the same way, that will be the end of the matter so far as the courts are concerned, even if the litigant’s sense of unfair treatment will often linger on. But in a tiny minority of cases he will not take “no” for an answer. He may start collateral litigation about the same subject matter. He may sue the judge. He may sue the lawyers on the other side. He may bombard the court in the same case with further applications and appeals.”

Action must be taken in such cases, His Lordship continued. Why? Because, he stated, in words as true today as they were 12 years ago:

“In recent years the courts have become more conscious of the extent to which vexatious litigation represents a drain on the resources of the court itself, which of necessity are not infinite.”

Author: Stowe Family Law

Comments(6)

  1. Harry Dischler says:

    This is nonsense.

    The reality is that LIP only cases according to MOJ statistics are resolved far quicker than those cases with Lawyers involved generally.

    Even now with Legal Aid, we have cases where one parent is on Legal Aid stalling for years, because they do not have a cost to them or it is minimal. All paid for by the taxpayers.

    In the past before the modest Legal Aid Reforms, it was common to see one parent on Legal Aid spend many years in court with her/his Solicitor and Barrister ignoring Court Orders and holding up a resolution.

    Many tens of thousands of £ were wasted on cases and far worse children were kept away from a parent simply because the primary carer had Legal Aid.

    The situation is far better now than in the past as Judges are working for a living to get a solution, rather than relying on adversarial Lawyers to keep the fighting going.

  2. Dr. Nigel Miles says:

    An interesting point.

    The drawback to the Court’s argument is that they are very limited in acting, primarily regarding minors, as to what really is in their real best interest. For example when both an applicant and the Local Authority base their argument on false allegations, perjury and as a LA perverting the course of justice and a Court can empirically assess their arguments as false then the Court has a moral duty to redirect further investigations. How often in Family Courts is this actioned? This would prevent the unecessary need for innumerable Court Hearings in the future.

    As a legal advocate l suggest you take such qualifying arguments to mind. Each application in these anachronistic hearings which in the main need never have come to Court if mediation were enacted irrespective of any situation unless initiated by the CPS. In most situations mediation would resolve these issues.

    Please remember unless it can be shown by medical professionals that a parent should not be acting as a parent to a child then why should that parent not be an engaging parent? Rarely do Courts nor legal advocates interview the minor children. Nor do outside bodies speak to or make contact with members of all sides of both familits involved. As such the vast majority of Court decisions are remarkably tainted by judgements based on conjecture and not empirical facts. This makes us a laughing stock, particularly in Europe.

    It may be that the previous Coalition Government favoured austerity measures and reduced regional financial support to LA has caused so called lack of quality input into time and quality effort in furthering the facts; sadly LA’s are tainted by rogue Children Services public servants too. But we are relating to life important effects in minors, who in one case further investigations have implicated the maternal family adults as DSM V sufferers specifically NPD’s.

    If we had a “backboned” previous Coalition Government and made Responsible Parity of Parenting enacted in Private Law as a Schedule in Children and Family Act 2014, the vast majority of these family cases would not come to Court and legal advocate firms could become and work more with and as mediating instruments integrated with family therapy professionals.

    We want what is the real best interest for all our children. Currently we are aiding and abetting abuse. Information had been brought to me from a prior case on a Section 47 Report provided in a relatively BALANCED family when a minor child lived in an UNBIASED situation states categorically that he wanted to do things WITH BOTH PARENTS then it beholds Courts to make judgement on this; this corroboratees these findings and until the new incoming coalition government enacts responsible parity of parenting such a balanced view has to be taken as fundamental to Wishes and Feelings qualifying experiencees. In this case they were ignored by the Court.

    And how many applications are considered vexatious, just one? Again evidence this has been brought to my attention from a judgement of a biased manner in a County Court Hearing in the South West of England. This has happened to someone when one application was deemed too many! And we all thought that legal advocates and Courts were intelligent.. There is no intention of belittling such Courts but evidence which is empirical is conclusive.

    Please be very careful in your opinions relating to this particular blog. It has to relate to one individual case and not be suggested as being the only base line for all. Was this Vexatious litigant in person examined by a psychiatrist previously and were his concerns investigated with empirical veracity?

    And never forget which we are all guilty of forgetting that our U.K. Government are signatures to and have ratified the UN Human and Political Rights and the U.N..Covention of the Rights of the Child which are insuperable in its moral and legal enaction.

    Dr. N. Miles,
    Research Convenor,
    Social Parity Working Group.
    Green Party, England and Wales.

    P.S. Search the manifestos of all political groups. The Greens is only one who advocate on universal parity

  3. Bolchedik says:

    I cannot speak for LIPs, some will probably be nuisances, but they cannot be nearly as bad as the nuisances called barristers, who are paid big money by taxpayers to lie, manipulate, bully, distort records and fabricate evidence, in short to make a mockery of justice. They are the shame of England.

  4. Nordic says:

    Dear Marilyn,,
    I can only agree with Harry. Your argument totally lacks cohesion. Today LIPs needs, in your words, “time on their hands”, but before the legal aid cuts neither time nor money was needed. Just access to funds provided by the tax payer. There was as much misuse of the courts then as now, if not much more.
    .
    As to K v K, who knows what really went on in that case. When I read the summary, it had warning lights flashing everywhere. Why was the father first refused contact and later given shared residence of the boy? Why such opposing judgements? Why did the girl not want any contact – alienation?
    .
    We don’t really know what happened in K v K. Maybe the father was mad, but maybe the treatment he got helped generate this outcome. Can you imaging some stranger telling you that you could not see your own children? Can you imaging how mad you would get? Unless you have tried it yourself, you cannot know how stressful, confrontative and destructive our family courts are. I don’t care how many time you have appeared in those courts. If you haven’t tried it personally, you do not know how it feels and what it does to otherwise normal people.
    .
    And that is the truly dark side of our family court system.
    .

  5. Pete says:

    “Thanks to the drastic cuts in legal aid implemented two years ago, the number of litigants in person (LIPs) appearing in the family courts has increased dramatically”
    Is this the only reason or is it because people have woken up to the fact that you can go to court with a solicitor having to pay them a stupid amount of money or go on your own saving the solicitors fee and still have the same end result .
    Sir James Munby has made some questionable comments in the past and you would think that by now he and other people in family law would realise that desperate people will grasp at straws especially with the system being as biased as it is.

  6. Carol Bird says:

    All LA’s should be legally binding on their Website to name any outside Firm of Solicitors they Outsource their Family Law Cases to, then the family would be aware of whom they are consulting, to act or not act for them

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