Every family lawyer who has practised for any length of time will have come across it: the litigant who is so obsessed by their case that they embark upon a course of continuous harassment of all who stand in the way of the achievement of their aims, including the other party, their lawyer and even the court itself.
I suspect that most obsessive litigants are driven not just by the perceived righteousness of their cause, but also by simply having too much time to convince themselves of that righteousness (and that everyone else is against them). This encourages them to devote that time to a ceaseless campaign in pursuance of their aims, blind to the fact that they are actually doing great damage not just to others, but also to their own cause.
The latest example of this phenomenon is the case Akester v Fitzgerald, in which one of the ‘victims’ of the obsessive litigant was no less than the President of the Family Division himself, Sir James Munby. As we will see, the obsessive litigant is an extremely tiresome creature, who causes their victims to waste an inordinate amount of precious time that could be far better spent doing more productive things.
This judgment in Akester v Fitzgerald doesn’t really go into the details of the case (if you want those details there are two earlier judgments that you can read), but the following facts, including examples of Mr Fitzgerald’s behaviour, will give you a flavour.
Mr Fitzgerald is actually involved in two pieces of litigation: one relating to financial remedy proceedings brought against him by his wife, and another in the Court of Protection, relating to his aunt, who is a patient whose affairs are under the control of the Court of Protection.
In the Court of Protection proceedings the President saw fit to impose a civil restraint order restraining Mr Fitzgerald from issuing claims or making applications in any court “concerning any matter involving or relating to or touching upon or leading to the proceedings in which this order is made or the subject matter of or any application or proposed draft application therein.” The effect of the order was that, for a period of two years, Mr Fitzgerald could not make any such claims or applications, without first obtaining the permission of the court. The order was made because of what the President called Mr Fitzgerald’s compulsive desire to litigate, including making at least 23 applications to the Court of Protection and bombarding “all and sundry” with an “enormous number of emails”. Making the order, the President said:
“Those who have been harried by Mr Fitzgerald are entitled to be protected. The court is entitled to protect itself, its processes and, indeed, other litigants from having so much of its time taken up – wasted – by Mr Fitzgerald.”
Undaunted, Mr Fitzgerald then made an application to revoke two orders made by the President in the Court of Protection. Obviously, the application was struck out, because Mr Fitzgerald had not obtained, or even sought, permission to make it.
But such setbacks do not deter the obsessive litigant. Mr Fitzgerald then sought to use the financial remedy proceedings, to which the civil restraint order did not apply, as a ‘back door’, by making an application in those proceedings asking the President to stay execution of two paragraphs of an order made in those proceedings pending directing a hearing in his court of the Court of Protection proceedings “at which he revokes on reconsideration” his two orders mentioned above, and refers a solicitor involved in the proceedings to the Attorney General for committal for contempt of court. By way of encouragement to the President the application was accompanied by an email from Mr Fitzgerald warning the President that:
“Failure to list a hearing of your own motion as requested would strongly suggest that you are not fit to be President of the Court of Protection.”
Needless to say, the application got short shrift from the President, who dismissed it, saying that it was “misconceived and totally without merit”. He also said that Mr Fitzgerald’s “attempt to ventilate these matters by application in the Family Division” was an abuse of process. Mr Fitzgerald could not evade the requirement of the civil restraint order “by attempting to make a spurious link with the proceedings in the Family Court”.
As to Mr Fitzgerald’s desire to see the solicitor committed for contempt of court, the President repeated the strong words he used at an earlier hearing:
“Mr Fitzgerald’s application is, in all its aspects, misconceived, devoid of factual merit, in major part legally groundless and totally without merit. His allegations against [the solicitor] are scurrilous, fatuous and should never have been made. His application for her committal is a farrago of nonsense.”
Mr Fitzgerald also made allegations against two other solicitors who had the temerity to play a part in the cases in which he was involved, leading the President to comment:
“It will not have escaped notice that Mr Fitzgerald is making allegations of the utmost seriousness – contempt, dishonesty and attempted fraud – against three different solicitors. These allegations, largely un-particularised and, so far as the material Mr Fitzgerald has chosen to put before me allows me to judge, entirely devoid of merit, are scurrilous. Their pursuit in the manner in which Mr Fitzgerald has chosen to proceed is the plainest possible abuse of process.”
Finally, as to Mr Fitzgerald’s warning to him, the President remained philosophical:
“It is for others to judge whether my decision, as Mr Fitzgerald would have it, shows my unfitness for office or impacts adversely upon the reputation of either the Central Family Court or the Family Division. I shall continue to do my duty whatever insults Mr Fitzgerald may continue to throw at me.”
I don’t think that the obsessive litigant is a phenomenon unique to family law, but certainly family law issues, being so deeply felt, are more likely to give rise to the phenomenon. As indicated at the beginning of this post, I certainly came across it many times when I was practising. A typical scenario would be the party on the other side of the matter from my client who, without a lawyer (who would try to thwart them by discouraging them from doing what they thought was best), would constantly bombard me with lengthy, usually handwritten, missives. These would appear on my desk on a virtually daily basis and, as the President said, would take up enormous amounts of my time to decipher and respond to. Most of the contents of these missives would, of course, be of little or no real relevance to the issues at hand.
There is a simple moral here: no matter how hard done by you feel regarding the progress and outcome of your case, you will not be doing yourself any favours by embarking upon obsessive litigation. Your achievement, apart from the damage to yourself, will be to annoy everyone else involved in the litigation and to run up a succession of failed applications, together with the inevitable orders for you to pay the costs of those applications.
The full report of Akester v Fitzgerald can be found here.