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.”