Vexatious litigation

Vexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender.

A single action, even a frivolous one, is not enough to raise a litigant to the level of being declared vexatious, though repeated and severe instances by a single lawyer or firm can result in eventual disbarment.

Some jurisdictions have a list of vexatious litigants: people who have repeatedly abused the legal system. Because lawyers could be disbarred for participating in the abuse, vexatious litigants are often unable to retain legal counsel, and therefore represent themselves in court. Those on the list are usually either forbidden from any further legal action or required to obtain prior permission from a senior judge before taking any legal action. The process by which a person is added to the list varies among jurisdictions.

Laws by country

Australia

High Court

Only three people have ever been declared vexatious litigants in the High Court of Australia, the first in 1976. Then, in 1992, Justice John Toohey ran out of patience with Alan Skyring and Patrick Cusack's repeated attempts to have their argument that the Commonwealth did not have the power to issue paper money re-heard.^[1]

New South Wales

In New South Wales, seventeen people are on the New South Wales Supreme Court's vexatious litigants register.^[2] They include Drago Jambrecina, who took a building society to court 44 times, Dominic Wy Kanak of the Waverley Council, who launched 40 proceedings against an Olympic beach volleyball stadium at Bondi, Pranay Bhatttacharya and Con Tsekouras.^[3].

Queensland

In Queensland, the process for having somebody declared a vexatious litigant is governed by the Vexatious Proceedings Act 2005, which supplanted an earlier Act.^[4] Importantly, the Act defines a vexatious proceeding to include a proceeding brought without merit or any prospect of success, with the consequence that it is not necessary to prove the existence of any improper motive in order to obtain relief under the Act. In recent years, Milton Conde, John Labaj, Russell Mathews and Dayal Mansukhani have had their rights to litigate restricted by the Supreme Court of Queensland.^[5]

Victoria

As of 2006^[update], only 13 people—including convicted mass-murderer Julian Knight—had been declared vexatious litigants since the law was introduced in 1930.^[6]

Western Australia

Legislation has existed since 1930, but is under review as of limited use.^[7]

United Kingdom

England

English courts have the means of escalating the sanctions against a litigant who makes applications to the court that are "totally without merit":^[8]

• Limited civil restraint order (formerly a Grepe v. Loam Order) where two or more applications totally without merit are made in a single proceedings. No further application may be made in the proceedings without the permission of the court.
• Extended civil restraint order for "persistently vexatious behaviour" lasts for a specified period of no more than two years for "applications touching upon instant matters" and can only be granted by a judge of the Court of Appeal, High Court or a designated civil judge.
• General civil restraint order for a maximum of two years for all proceedings in the High Court or specified County Court(s).

Further applications totally without merit can lead to withdrawal of the right of appeal. Harassment of the court and court officials can lead to a penal prohibition notice, prohibiting the litigant from contacting or approaching the court without permission.^[9]

HM Courts Service maintains a list of vexatious litigants.^{[10][dead link]}

Scotland

Under the Vexatious Actions (Scotland) Act 1898 the Lord Advocate can apply for an order to prevent any person accused of vexatious litigation from raising any and all legal proceedings "unless he obtains the leave of a judge sitting in the Outer House on the Bills in the Court of Session, having satisfied the judge that such legal proceeding is not vexatious."^[11] A list of people who have had such an order brought against them is published on the Scottish Courts website. As of April 2011 there are seven names on this list.^[12]

Canada

Under the Constitution Act, 1867, section 92(14),^[13] each province is vested with the power to enact and apply laws relating to the administration of justice within its own territory.

In Canada, Section 40 of the Federal Court Act^[14] and in Ontario Section 140 of the Courts of Justice Act,^[15] restrict the ability to introduce or continue proceedings for those who have instituted vexatious proceedings or conducted proceedings in a vexatious manner.

Quebec

In Quebec, the Code of Civil Procedure is the principal legislation that sets rules related to civil procedure.

Under section 46 of the Code of Civil Procedure,^[16] all judicial courts and judges in Quebec are vested with "...all the powers necessary for the exercise of their jurisdiction". Furthermore, they may:

"…at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law."^[17]

Section 46 vests a very broad power on judicial courts and judges to ensure that the administration of justice is conducted according to decorum and according to the remedial nature of justice. As the courts's decisions have shown it, the authority to declare a litigant as vexatious is directly tributary to the power conferred by section 46.

Cases illustrating the application of section 46 are numerous. Among them, there are: Nguiagain v. Commission de la fonction publique,^[18] in which the judge rejected the plaintiff's motion for a mandamus to enjoin his union to revise the grievance that he had filed on the grounds that the motion was groundless and abusive; De Niverville c. Descôteaux,^[19] where an injunction was rendered declaring the respondent, disbarred lawyer Descôteaux, as a vexatious litigant due to the multiple unfounded and frivolous actions that he had sought against the plaintiff De Niverville; and in Fabrikant v. Corbin,^[20] a motion to declare the plaintiff Valery Fabrikant as a vexatious litigant was granted to the defendant, Dr. Corbin. It must be noted that in all of the above cited cases, a litigant was only declared vexatious following a proceeding instated by the opposite party.

Moreover, section 46’s scope is limited to judicial courts and judges. Administrative tribunals are legislative creations and they can only exist and function within the limits that are imposed by law. Administrative tribunals in Quebec cannot declare a person a vexatious litigant.

As per section 90 of the Rules of Practice of the Superior Court of Québec in Civil Matters,^[21] such litigants are now indexed in a registry kept by the Chief Justice in the judiciary district of Montreal. Lawyer and author Claude Duchesnay has reported in May 2003 that a document on the Quebec attorney general’s intranet contains the name of 58 persons who must obtain permission prior to instating proceedings before the courts.^[22]

Ireland

In Ireland, a court may, of its own motion or on application, order that no proceedings, either of a certain type or at all, may be issued by a certain person without leave of that court or some other court, for a specified time, or indefinitely. Such an order is referred to in legal circles as an Isaac Wunder order after Isaac Wunder who made several claims against the Hospitals Trust claiming sweepstakes prizes, but the claims were found to be groundless and the case deemed frivolous or vexatious. He was prohibited from taking further High Court proceedings in the action without leave of the court.^[23]

New Zealand

In New Zealand a litigant may be declared a Vexatious Litigant by a High Court Judge on the application of the Solicitor-General. A vexatious litigant must then apply to a High Court Judge for leave to commence any action. In practice the Solicitor-General only makes applications against people who have persistently and vexatiously sued the Crown.

United States

California

Under California law^[24] a vexatious litigant is someone who does any of the following, most of which require that the litigant be proceeding pro se, i.e., representing himself:

1. In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.
2. After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
3. In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
4. Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

Appeals of an existing action do not count as “final determinations”. Appeals and writs that are related to a current action do not count as “final determinations” or additional determinations, because until all avenues of appeal have been exhausted the determinations cannot be construed as “final”.^[25] A judgment is final for all purposes when all avenues for direct review have been exhausted.^[26] Interlocutory decisions before a judgment cannot be considered “final determinations”.^[27] Docket lists show nothing about qualifying merit of interim motions (Id.)

To meet the unspecified criteria for "repeated" motions or litigations, the number must be much more than two, and the rule based on case law seems to be around 12. "While there is no bright line rule as to what constitutes “repeatedly,” most cases affirming the vexatious litigant designation involve situations where litigants have filed dozens of motions either during the pendency of an action or relating to the same judgment." ^[28]

Repeated motions must be "so devoid of merit and be so frivolous that they can be described as a flagrant abuse of the system, have no reasonable probability of success, lack reasonable or probable cause or excuse, and are clearly meant to abuse the processes of the courts and to harass the adverse party than other litigants."^[29] Evidence that a litigant is a frequent plaintiff or defendant alone is insufficient to support a vexatious litigant designation.^[30] The moving party, in addition to demonstrating that the plaintiff is vexatious, must make an affirmative showing based on evidence that the case has little chance of prevailing on the merits. If the plaintiff is so determined, a bond may be required, and if the bond requirement is not met within a specified time period, a judgment of dismissal is ordered. A finding of vexatiousness is not an appealable order, but a dismissal for failure to post a bond requirement based on a judgment of vexatiousness is appealable.

Habeas petitions do not count towards vexatious litigant determination.^[31] Vexatiousness in Probate Actions are governed by a different standard (Cal. Prob. Code s. 1611).

Notable vexatious litigants

• The Church of Scientology. "Plaintiffs (Scientologists) have abused the federal court system by using it, inter alia, to destroy their opponents, rather than to resolve an actual dispute over trademark law or any other legal matter. This constitutes 'extraordinary, malicious, wanton and oppressive conduct.' As such, this case qualifies as an 'exceptional case' and fees should be awarded pursuant to the Lanham Act... It is abundantly clear that plaintiffs sought to harass the individual defendants and destroy the church defendants through massive over-litigation and other highly questionable litigation tactics. The Special Master has never seen a more glaring example of bad faith litigation than this." (RTC v. Robin Scott, U. S. District Court, Central District of California, No. 85-711-JMI (Bx) 85-7197-JMI (Bx), January 20, 1993, Memorandum of Decision).^[32][33]
• David Eastman^[34] convicted of the murder of Australian Federal Police Assistant Commissioner Colin Winchester whom he shot twice in the head at point blank range in the driveway of Winchester's home in Deakin, ACT. He was found guilty and was sentenced to life imprisonment without parole for the murder. Eastman was tried in 1995, a process lasting 85 days. During the trial, Eastman repeatedly sacked his attorneys and eventually chose to represent himself. Eastman also abused the judge during his trial, and during later legal proceedings and appeals. Subsequent to his conviction, Eastman continuously appealed against his conviction, attempting to win a retrial on the basis that he was mentally unfit during his original trial. On 27 May 2009, Eastman was transferred from a NSW prison to the ACT's Alexander Maconochie Centre to see out his sentence.
• Julian Knight, convicted of the Hoddle Street massacre in Melbourne, Australia. Numerous actions, primarily seeking injunctions against the prison incarcerating him, cost the Victoria government over A$250,000 directly, plus some A$128,000 in outside legal costs.^[35]
• David James Lindsey, a Melbourne man so declared after repeatedly suing doctors, insurance firms and companies such as Carlton & United Breweries for smoking-related damages. On February 21, 2006, the Supreme Court of Appeal gave him leave to sue Philip Morris, demonstrating that a vexatious litigant is not completely blocked from launching further court action.^[36]
• Valery Fabrikant, a former Concordia University professor serving a life sentence for the murders of four colleagues in 1992.^[37]
• Francis 'Coyote' Shivers, former husband of Bebe Buell and Pauley Perrette, deemed a Vexatious Litigant on August 27, 2008 by The Superior Court of Los Angeles County during a long ongoing trial between himself and Perrette.^[38]
• Isaac Wunder, who gave his name to the Isaac Wunder order which may be issued in Ireland to vexatious litigants.^[39]
• Richard Mack, after whom the Mack Bar, an order barring a litigant from making substantially any non-criminal filings within the court's jurisdiction, is named. In the course of his litigation, Mack made numerous frivolous petitions and motions, resulting in monetary sanctions. Mack initially failed to pay the sanctions. At one point, Mack set up his own corporation having the same name as the defendant against whom his was litigating, made payments to that corporation and then represented to the court that he had complied with the duty to pay. After the sanctions escalated from $100 to $5500 and remained unpaid, the Court of Appeals issued an order, now referred to as a Mack Bar, preventing any further filings from being accepted by the court.^[40]
• Andy Martin (Anthony Martin-Tragona), who has been barred since 1983 from filing any legal action in a US federal court without permission.^[41] He is banned from seeking indigent status in Florida courts due to his history of filing abusive petitions.^[42] Martin is also prohibited from filing lawsuits in New York, unless represented by an attorney or with the court's prior approval. ^[43]

See also

Abuse of process Barratry Franchise fraud Frivolous or vexatious            Legal abuse Malicious prosecution

Querulant Strategic lawsuit against public participation ("SLAPP") Isaac Wunder order Scientology and the legal system Pro se legal representation in the United States Liebeck v. McDonald's Restaurants

Notes

1. ^ Michael Pelly (2004-05-27). "Nuisances in court: judges get tough on serial pests)". The Sydney Morning Herald. http://www.smh.com.au/articles/2004/05/26/1085461835965.html?from=storylhs. 
2. ^ NSW Supreme Court list of vexatious litigants, http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_vexlitstable#10
3. ^ Michael Pelly (2004-05-27). "Nuisances in court: judges get tough on serial pests)". The Sydney Morning Herald. http://www.smh.com.au/articles/2004/05/26/1085461835965.html?from=storylhs. 
4. ^ Queensland Courts. "Vexatious litigants )". Queensland Courts. http://www.courts.qld.gov.au/151.htm. 
5. ^ Queensland Courts. "List of persons against whom a Vexatious Proceedings Order has been made pursuant to the Vexatious Proceedings Act 2005)". Queensland Courts. http://www.courts.qld.gov.au/Vexatious_Proceedings/VexatiousProceedingsOrders.pdf. 
6. ^ Annoying litigant is back, theage.com.au, April 10, 2006
7. ^ 2.11
8. ^ Civil Procedure Rules, Practice Direction to Pt.3 3CPD.2.1
9. ^ O'Hare, J. & Browne, K. (2005). Civil Litigation (12th ed. ed.). London: Sweet & Maxwell. para 7.011. ISBN 0-421-90690-1. 
10. ^ "List of vexatious litigants (England and Wales)". HM Courts Service. http://www.hmcourts-service.gov.uk/infoabout/vexatious_litigant/. Retrieved 2007-07-07. 
11. ^ http://www.legislation.gov.uk/ukpga/Vict/61-62/35
12. ^ http://www.scotcourts.gov.uk/session/vexatiousLitigants.asp
13. ^ "Legislative Authority of Parliament of Canada". http://laws.justice.gc.ca/en/const/c1867_e.html#distribution. Retrieved 2008-07-06. 
14. ^ Federal Courts Act
15. ^ Courts of Justice Act, R.S.O. 1990, c. C.43
16. ^ L.R.Q., ch. C-25, s. 46
17. ^ Code of civil procedure, L.R.Q., ch. C-25, s. 46
18. ^ [1996] R.J.Q. 3009
19. ^ [1997] R.J.Q. 1049
20. ^ J.E. 2000-1347
21. ^ L.R.Q., ch. C-25, r. 8
22. ^ Claude DUCHESNAY, « Se représenter seul », Congrès du Barreau du Québec, Compte rendu des activités de formation, Le Journal Barreau , édition du 1 er août 2002, p. VII et VIII
23. ^ http://www.jsijournal.ie/html/Volume%201%20No.%201/1%5B1%5D_Moore_Isaac%20Wunder%20Orders.pdf
24. ^ California Code of Civil Procedure, § 391(b)
25. ^ Childs v. Painewebber, Inc. (1994), 29 Cal.App.4th 982
26. ^ First Western Development Co. v. Superior Court, (1989) 212 Cal.App.3d 860, 864, 261 Cal.Rptr. 116.
27. ^ Holcomb v. U.S. Bank Nat. Ass'n, (2005), 129 Cal.App.4th 1494, 29 Cal.Rptr.3d 578
28. ^ Bravo v. Ismaj, (2002) 99 Cal.App.4th 211, 120 Cal.Rptr.2d 879)
29. ^ Morton v. Wagner, (2007) 156 Cal.App.4th 963, 67 Cal.Rptr.3d 818.
30. ^ Roston v. Edwards, (1982) 127 Cal.App.3d at 847, 179 Cal.Rptr. 830.
31. ^ In re Bittaker, (1997) 55 Cal.App.4th 1004, 64 Cal.Rptr.2d 679.
32. ^ "More Judicial Quotes". http://www.lermanet.com/cos/morejud.html. Retrieved 2008-07-06. 
33. ^ "RTC, et al., Plaintiffs, v. ROBIN SCOTT, et al., Defendants.: MEMORANDUM OF DECISION". UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA. http://www.californiacivilprocedure.com/Cal_Civ_Pro_Vol_047_Ch_0004_Sec_0002_Par_0000_Attorneys_Fees_UNITED_STATES_DISTRICT_COURT.htm. Retrieved 2011-06-16. 
34. ^ http://www.austlii.edu.au/cgi-/disp.pl/au/cases/act/ACTSC/2007/29.html
35. ^ "Hoddle Street killer banned from court". The Age (Melbourne). 2004-10-19. http://www.theage.com.au/articles/2004/10/19/1097951666370.html?from=top5. Retrieved 2008-07-06. 
36. ^ Shiel, Fergus (2006-04-10). "Annoying litigant is back". The Age (Melbourne). http://www.theage.com.au/news/national/annoying-litigant-is-back/2006/04/09/1144521210696.html. Retrieved 2008-07-06. 
37. ^ "Judge dismisses Fabrikant motions". The Globe and Mail (Toronto). http://www.theglobeandmail.com/servlet/story/RTGAM.20071107.wfabrikant1107/BNStory/National/home. Retrieved 2008-07-06. 
38. ^ "Vexatious Litigant List". Superior Court of California, County of Imperial. 2 September 2008. http://www.imperial.courts.ca.gov/PDFDocs/Vexatious_litigant_list.pdf. Retrieved 2010-06-01. 
39. ^ McDermott, Paul Anthony (2009-03-01). "Courts face an invasion of axe-grinders: How should the courts protects themselves from drama-queen litigants pursuing imagined grievances". Sunday Times (London). http://www.timesonline.co.uk/tol/news/world/ireland/article5821382.ece. Retrieved 2010-10-12. 
40. ^ Support Systems Intern., Inc. v. Mack, 45 F. 3d 185 (7th Cir. 1995)
41. ^ Martin-Trigona v. Smith et al., 737 F.2d 1254.
42. ^ http://www.floridasupremecourt.org/decisions/pre2004/ops/sc93573.pdf
43. ^ Martin-Trigona v. Capital Cities/ABC, Inc. 546 N.Y.S.2d 910 (N.Y. Sup., 1989)