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Intro:Martin Frost is fighting a
vexatious litigant order on Tuesday 25th Oct and Wednesday 26th Oct 05
– his case is perceived by some as a test case.
Should the vexatious order be granted it is understood that the Scottish Executive may have up to 50 more vexatious orders in the pipeline – people such as Robbie the Pict; John Parkes; Dean Warwick; Andrew McNamara are believed to be candidates. |
Update on Vexatious Litigant Proceedings held on 2005-10-25It was an interesting day.•
Mr Franks for Unity and Mr Nicol counsel for Unity turned up.
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My motion for the proceedings to be recorded was refused by the court.
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Petitioning counsel stated that he wished it to be known that the Lord
Advocate, Mr Colin Boyd, has taken a personal interest in this
vexatious petition and that he, Colin Boyd, had expressly authorised
the petition – not sure if that isn't a back handed compliment.
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IN THE COURT OF SESSION The
Respondent Martin Frost’s
Skeleton Argument On the Lord Advocate’s Petition For An Order under the Vexatious Actions (Scotland) 1898 Chapters 1 – 3 provide an overview Please can the proceedings on Tuesday 25th October 05 & Wednesday 26th October 05 be recorded. INDEX
1. Introduction (page 3)2. Pre-amble (page 6)3. Summary, the Law, Answers to the Petition, and additional Cases. (page 8)4. History of Martin Frost (page 22)5. History of British Vexatious Legislation (page 24)
6. Definitions (page 33)
7. Productions with Skeleton Argument with inventory found in separate bundle.1. IntroductionMartin Frost renews his proposed undertaking to this honourable court – acknowledging that this undertaking may carry a heavier penalty of contempt – as was noted in the English case: Attorney-General v Akena Adoko - 20th May 2004 which implies that in England it is ultimately the court who accepts or not such an offer. That said, if his offer is declined, Martin Frost remains opposed to this petition which he perceives as being ill conceived, fundamentally flawed in law, inaccurate and cherry picked in content to the point of deception, and prompted by bad faith on the part of some members of Edinburgh’s legal fraternity especially the progenitors of this petition, Frost’s former lawyers Shepherd & Wedderburn. Furthermore, Martin Frost doubts the ‘mens rea’ of the Scottish Executive as Cintec International Limited, Shepherd & Wedderburn’s current client, regularly states to English, Scottish and US courts that Frost and his partner, John Parkes, (with whom Cintec remain in dispute with) are vexatious litigants. Not known as yet if the Scottish Executive has proceeded with a vexatious petition against John Parkes but their internal correspondence suggesting such was happening is currently a court exhibit before the Honourable Judge Richard J Leon of the District Court of Columbia US. In short, has the Lord Advocate/ Scottish Executive been duped for commercial reasons into entering an industrial dispute? Finally, the Respondent has some concern that this Petition is either a ploy or itself is an abuse of process by its summary removal of a perceived troublesome party litigant, or a deterrent to party litigants in general from untroubled access to our courts, which courts many legal practitioners believe should be a closed shop.
On Wednesday September 21st 05 the Court accepted an undertaking from the Petitioner’s counsel, Mr James Wolfe, that an up to date closed Record would be with the Respondent Martin Frost within seven days – it wasn’t and such closed Record Martin Frost but received on 22nd October 05. On 21st September 05 Martin Frost indicated that he wasn’t ready to proceed as he had neither received the discovery he was seeking nor the closed Record – in particular he expected to amend his answers in respect of new information received (understood that the above said may be recorded in the minute of proceedings). At the bar, counsel for the Petitioner tendered part of the discovery sought by the Respondent – fundamental to the competency of these present proceedings is the document in which the Lord Advocate purports to delegate his authority under the Vexatious Actions (Scotland) Act, 1898 to the Scottish Executive. From 1944 onwards, HM Lord Advocate delegated to HM Solicitor-General for Scotland the "function" of making the application under section 2(1)(c) of the Law Officers’ Act, 1944. Currently there is still confusion by the Respondent as to the status, locus and title to sue of Scottish Executive in these proceedings such confusion is enhanced by the failure to update the Scottish Act (unlike England’s) to take proper note of the variance between criminal and civil procedure, the Human Right’s legislation and Scottish Devolution.
Martin Frost’s Note prepared for 21st September 05 hearing.
Martin Frost – Order under Vexatious Actions
That said these proceedings do have veneer of a ‘show trial’ given that solicitors Shepherd & Wedderburn have already put it in writing to various national courts (including courts in the USA where their correspondence and that of the Lord Advocate’s representatives in this matter is exhibited) that the Respondent is an adjudged vexatious litigant – and again Mr Murphy Q.C. has oft stated both privately and publicly to members of the judiciary that the Respondent is an adjudged vexatious litigant – the last recorded public occasion being the Petition for Recall of John Parkes Sequestration when Mr Murphy informed Lord Macphail, and Lord Macphail accepted that Martin Frost was now an adjudged vexatious litigant. Martin Frost respectfully suggests that either the Lord Advocate accepts his tender or that the hearing is put off to another day till after the above issues are determined. Martin Frost 2005-09-21 With the exception of the Closed Record received on Saturday 22nd October 05 the thrust of the above note of 21st September 05 given to the Court remains – that said the Respondent has no illusions as to the outcome of this perceived show trial so matters should proceed without delay. Martin Frost finds it ironic that more documentary information concerning himself as a vexatious litigant has been presented to courts in the US than that Martin Frost have been able to officially obtain in Scotland – furthermore from evidence presented elsewhere Martin Frost is already sentenced so procedurally it might present Scottish justice in a better light if there is an illusion of considered judgement, albeit after sentence. Shibboleth – widely held as true but in veritas a false belief. Consider of the nine numerical causes mentioned in the Lord Advocate’s Petition Statement II, some six (1; 2; 3; 4;5; and McNamara & Frost v Levy & McRae in 7) were drafted by professional counsel. See Lord Bonomy’s Opinion of 21st May 1999 in Frost v Unity Trust Bank Plc. Service of Petition – Scottish Messengers were not able to serve the Petition on Martin Frost, senior, for he was living in England but after being contacted by phone Martin Frost agreed to travel to Scotland so as the Messengers at Arms could serve him at their place of business in Galashiels. Admitted that the Respondent has a residence in Scotland, denied that the Respondent is domiciled in Scotland.
The Act states: ‘that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court, and whether against the same person or against different persons, the Court may order that no legal proceedings shall be instituted by that person in the Court of Session or any other court, unless he obtains the leave of the Lord Ordinary.’ Vexatious Actions (Scotland) Act, 1898. (The Act)
‘party’ means a person who has entered appearance in an action or lodged a writ in process of a cause. Court of Session Rules 1.3. ‘person having a right to conduct the litigation’ means a person having a right to conduct litigation by virtue of Part II of the Law Reform (Miscellaneous Provisions)(Scotland)Act 1990 in respect of the nature of the cause in question. . Court of Session Rules 1.3. ‘party litigant’. In the Court of Session only a natural person in his own cause may be a party litigant. A company, a firm, other artificial entity or non-natural person may not be a party litigant: see Gordon v Nakeski-Cumming 1924 S.C. 939, 941-942 per L.P. Clyde; Equity and Law Life Assurance Society v Tritonia 1943 S.C. (H.L.) 88. Court of Session Rules Annotated Guide 4.2.6.
Scottish vexatious case law suggests: Under the Act, a number of litigants have been declared vexatious. In HMA v Bell, it was found that Bell’s pleadings had been devoid of any statement of a comprehensible ground of action and had become increasingly wild and an order under the Act was not contrary to Article 6 of the European Convention on Human Rights. He had been involved in nine cases, in all of which the averments were found irrelevant, decrees of absolvitor granted, and actions dismissed. In the Lord Advocate v Cooney, it was held that whether an order should be made did not simply depend on the number of actions involved but in the manner in which the litigant conducted himself. A succession of hopeless appeals and abuse of process were illustrative of the vexatious nature of the litigant. Cooney used court actions as a weapon in a war of attrition against people whom he regarded as responsible for his bankruptcy. In Lord Advocate v Henderson 1983 S.L.T. 518, it was determined that the critical questions were whether there were reasonable grounds for instituting proceedings; whether they or any of them were vexatious; and whether the proceedings had been instituted habitually and persistently. In Lord Advocate v Rizza 1962 S.L.T (Notes) 8, Rizza raised ten actions arising out of a variety of circumstances following from his divorce. He was not successful in any of the actions and did not pay expenses. The court found that although the courts are free to all litigants, that freedom must not be confused with licence. In the Lord Advocate v Grade, Mrs Gracie raised thirty actions over 45 days for a total of £56,000, all of which were frivolous. She was a habitual and persistent bringer of actions of the type struck at by the Act.
An omission can be construed as a lie.
Since 1981 Martin Frost in various legal persona (as an individual, in partnership or via a limited company) has been involved in over 500 legal cases, of which less than 10 % are to be found within the Scottish jurisdiction. Of those Scottish actions Martin Frost, senior, has secured a win rate of 70% in the Outer House and over 60% success in the Inner House.
3. Summary, the Law, Answers to the Petition, and additional Cases.
The fundamental problem is that the Lord Advocate’s Petition is less than a half truth – it fails to present an objective, balanced and accurate picture. In large measure the petition appears to be a compilation concocted by solicitors Shepherd & Wedderburn, and associates of theirs who have a vested interest.
As may be seen in chapter four below the title Martin Frost at the Edenside address has three distinct legal personas – namely Martin Frost, senior; his son Martin Frost, a practicing solicitor, and the partnership business known as Martin Frost. Martin Frost, senior, who collected this Petition from Messenger at Arms office in Galashiels, assumes that the Scottish Executive/Lord Advocate’s Petition is directed at him but there follows some confusion as to the causes quoted in the statements of fact – does the Scottish Executive have title to pursue this petition and indeed where in the Act is the Court granted power to apply the Act to a ‘company, a firm, other artificial entity or non-natural person’. Bluntly the Petition as it stands is a mess – there was an interim ex-parte order granted which not only lacks precision as to the Respondent but prima facie breaches Article 6 of the Human Right’s Act and has dubious authority either to statute or case precedence. But even assuming such an interim order could satisfy the balance of convenience and title considerations such an order is not enforceable in England where the messenger at arms were required to serve it – and given the interim order’s incompatibility with current English vexatious practice, the orders enforceable registration under the 1982 Civil Jurisdictions Act would prove unhelpful.
Prior to this Vexatious Petition being heard some basic facts and law requires to be determined – the instance of the Petition and Statement I lack candour and specification:
Statement II of the Petition fundamentally flawed because:
Statement II attempts to restrict itself subjectively to a piecemeal of actions and within those actions there has been no attempt as to proper analysis – indeed given Shepherds & Wedderburn’s letter of the 7th January 04 along with its supporting opinions there appears to have been no proper attempt by Scottish Office solicitors to verify or appraise the selected evidence presented to them.
Consider:
Unity Trust Bank Plc and Frost – There are 5 legal actions. Unity v Frost (possession) Jedburgh Sheriff Court 1994 Unity v Frost (payment) Jedburgh Sheriff Court 1994 Unity v Frost (possession) Selkirk Sheriff Court 1994 Frost v Unity (payment) Court of Session, Edinburgh 1994 Inland Revenue & Unity v Frost (insolvency) Leeds High Court 1997
In 1994 the Frosts appointed Mrs Brailsford of Tods Murray WS, Edinburgh to represent them in the Scottish Unity actions and lodge defences – Mrs Brailsford employed Mrs Eirlys Smith, advocate, to represent the Frosts. Mr C Franks of Franks McAdam Brown for Unity in 1994 reported Mrs Eirlys Smith, advocate to the Dean of the Faculty of Advocates for representing the Frosts on a hopeless case – The Dean of the Faculty rejected Franks’ complaint and in turn the Ombudsman rejected Franks’ complaint. By agreement of the parties in October 1994, the Frost counterclaim in the Jedburgh payment action was dropped to be replaced by a Court of Session action, Frost v Unity, and the Unity payment action remitted from Jedburgh to the Court of Session where the intention was originally to co-join the remitted action and the new Court of Session Summons, Frost v Unity. The Jedburgh and the Selkirk Sheriff Court possession actions were sisted, as they currently remain.
As is explained in chapter four Martin Frost senior regularly then engaged in dispute resolution, the funding of legal actions, and money lending to the upwardly mobile. Amongst others Mr Iain Smith, clerk to the Second Division, and his wife Eirlys Smith approached Martin Frost, senior, for financial assistance. Assistance was given by Frost which enabled the Smiths to purchase 17 Abercromby Place, Edinburgh. In or about 1994 a dispute resolution company London & Edinburgh Limited was set up (run by the Smiths but ultimately controlled by Frost) whereby Iain Smith could use his court position to obtain business, Eirlys Smith could advocate and Martin Frost and his colleagues could introduce clients. Understood that Tods Murray benefited from several introductions but on account of cost Frost requested that new business be transferred to a more economic solicitor firm and so Brown & Co, Hanover St, Edinburgh were appointed. In a number of legal actions Brown & Co appointed Mrs Eirlys Smith to act for London & Edinburgh clients. Concurrent with the above Mr Iain Smith perceived that Martin Frost was having an affair with his wife, Eirlys Smith so Iain Smith wrongly advised his friend Mr David Shand, Lord Penroses’ clerk that his wife Eirlys Smith had been misled by Martin Frost who had induced his wife Eirlys to defraud London & Edinburgh’s client Mr James Thomson re his sequestration--believed that Mr Iain Smith is cajouled into this thinking by Mr C Franks of Unity who eventually (co-incidentally) acts for James Thomson’s wife. Anyhow when advised by his clerk, Lord Penrose freaked out, called in the police and the Accountant in Bankruptcy and wrote to the Dean of the Faculty of Advocates, Lord Hardie, implying Martin Frost was a thief and Mrs E Smith had failed in her duty. The Dean of the Faculty, Lord Hardie Q.C. (who subsequently reclused himself from hearing Frost on account of the Smith suspension) suspended Mrs E Smith and in turn appointed a Committee of Investigation to look into Mrs E Smith’s conduct. (Such Committee of Investigation by co-incidence included Mr Murphy Q.C, Cintec’s lawyer and a progenitor of this Lord Advocates Petition.; Sheriff T.A.K. Drummond, the sheriff who signed Frost’s sequestration petition by Cintec; Lord Carloway who after denegrating Frost’s written pleading in the Recall of Sequestration Petition thereafter decided to recluse himself from hearing Frost; with solicitors Shepherd & Wedderburn). Due to these unusual circumstances Martin Frost was unable to secure fresh legal representation for himself and became a party litigant though his wife did at first secure legal representation. In 1995 Martin Frost senior before Lord Hamilton lodged a Minute of Amendment in Frost v Unity but his wife’s counsel, without an attempt at referral to his wife, opposed Martin Frost’s motion for Mrs Frost’s counsel had reached an accommodation with Unity’s counsel. Thereafter Martin Frost’s wife sacked her legal advisors and became a party litigant. Shortly thereafter, before Mr Horsburgh Q.C. in Frost v Unity, Unity secured a dismissal of the Frost claim. The Frost’s reclaimed and won their reclaiming motion in October 1996 before the First Division when the Lord President wrote in a brief minute of amendment for the Frosts and set down a Preliminary Proof in Frost v Unity for March 1997. (Co-incidentally Unity destroyed their internal records in late 1996 for the 1989 period under dispute with the Frosts). In December 1996 Martin Frost was forced into insolvency by the Inland Revenue who had received bad mouthing advice from Mr Franks acting for Unity. Under the English insolvency arrangements then current all legal actions were stayed or sisted upon an agreed timetable. Three Court of Session causes in which Martin Frost was a party were sisted but Lord Nimmo-Smith refused the sist in Frost v Unity, although Lord Cameron granted it in Unity v Frost. Martin Frost reclaimed but when his reclaim motion came before the First Division it was refused – Frost believes due to an untruth told by Unity’s counsel as may be perceived in the Lord President’s Opinion. Martin Frost was refused leave to appeal to the House of Lords and so he gave notice that he was obliged to abandon the Frost v Unity cause because contrary to Unity’s counsel assurance to the Lord President at the Reclaiming motion Unity had decided to challenge the veracity of his English insolvency and due to the English insolvency rules Martin Frost was unable to continue with the Preliminary Proof until the matter of Unity’s insolvency challenge was concluded.
At the discharge of proof in March 1997 in Frost v Unity, Unity’s counsel questioned the integrity of the Frost’s and implied that they had acted recklessly throughout the history of the cause – Lord Osborne rejected their motion at the bar for enhanced costs and noted in his Opinion – ‘Considering that (the Respondent and his wife) have not had legal representation, its conduct (i.e. the conduct of the litigation) appears to me not to have been open to serious criticism.’
Martin Frost holds that in the cause Frost v Unity, Lord Osborne’s Opinion effectively is Res Judicata on any suggestion of improper vexatious conduct in this cause prior to March 1997.
In the Inland Revenue & Unity v Frost, the Inland Revenue and Unity lost their challenge against Martin Frost’s insolvency in Leeds High Court. Unity were refused leave to appeal but have as yet to pay the cost orders made against them.
Frost v Unity taxation. Fundamentally Martin Frost did not agree with Lord Bonomy’s determination that he was obliged to pay VAT to Unity on the taxed account – at the Reclaiming Diet in December 2000 a compromise was reached whereby Martin Frost paid the disputed VAT figure to be held by the Accountant of Court until this issue could be resolved – currently the sum of some 4,000 odd pounds is still held there. A paradox occurs for in Cintec v Parkes & Frost 2003, the English Court of Appeal judge refused leave to appeal upon the submission by Frost he was entitled to a VAT account invoice as per Lord Bonomy’s determination which was endorsed by the Extra Division of the Court of Session. Martin Frost still holds he was correct not to pay the VAT element on the taxed account to Unity – in short he believes the English practice is the right one and with Frost v Unity and VAT the Court of Session got it wrong. Thus from March 1997 till to date Martin Frost does not consider himself to have been vexatious in Frost v Unity.
In the remitted Sheriff Court action Unity v Frost in 1997 Lord Coulsfield granted time for the Frosts to obtain fresh legal representation – such proved impossible and so the Frosts soldiered on as party litigants. After losing their Reclaiming Motion in December 2000, in 2001 Unity Trust enrolled a motion before the Extra Division requesting an additional fee for costs on account of Martin Frost’s vexatious and time wasting manner in which he had conducted his case. The Extra Division rejected Unity’s motion without calling upon Frost to speak noting that the Frosts had secured costs orders in this cause against Unity and given all the circumstances they did believe it appropriate or justified to penalise the Frosts.
Martin Frost holds that in the cause Unity v Frost, the Extra Divisions expenses interlocutor effectively is Res Judicata on any suggestion of improper vexatious conduct in this cause prior to March 2001.
Progress of Unity v Frost cause since March 2001 is not vexatious. The Lord Advocates version of events appears to be derived from Unity Trust’s Public Relations Department. Admitted Lord Eassie did not find for the Frosts at the Preliminary Proof but Lord Eassie expressed concern as to Unity’s position and upon the subject of expenses which normally go to the winning party reduced Unity’s entitlement to two thirds. Again at Procedure Roll in 2004 Martin Frost not only enjoyed partial success but again achieved further expense awards against Unity. Furthermore when Martin Frost reclaimed Lady Smith’s interlocutor to the First Division in April 2004 such reclaim proved successful.
The current situation (2005-10-24) on the dispute between Frost and Unity is as follows:
Finally there still remains the issue of abuse of process by the Scottish Office/Lord Advocate whereby the Petition refers to current causes still awaiting adjudication before the courts as with Unity v Frost. The Petition paints an unrepresentative, contradictory and often factually incorrect or distorted picture. The Petition appears to break new ground for in the main the Petition relates to matters which are currently before the courts; thus in Frost’s analysis the Petition is a flagrant breach of his rights to a fair and an impartial hearing in these causes. The Petition seeks to prejudge matters that to date Senators have deemed are worthy of consideration.
Frost and John Bulman
John Bulman is a ‘malicious’ complaint from Shepherd & Wedderburn who originally acted for Martin Frost, and on account of Frost’s refusal to accept their negotiated settlement of £8,000 with Bulman resigned agency. Why given the myriad of cases Frost was involved in did Shepherd & Wedderburn and in turn the Scottish Executive choose to run with this one? The background is that John Bulman in 1992 sued Frost in an industrial tribunal for £18,000; after Shepherd’s exit a new lawyer was appointed but on account of an oversight by a failure to attend an award of some £1,800 was made against Martin Frost, but prior to appeal using a quirk in Scots Law John Bulman poined Frost’s wife’s possessions. Linda Frost and Martin Frost objected to the poinding but lost at trial at the Jedburgh Sheriff Court. The Reclaim to the Court of Session, Bulman v Frost, was conducted by counsel but failed. Frost then paid the £1,800 plus costs to Bulman’s sheriff officers and immediately arrested the same sum held in the Bulman’s sheriff officers hands upon the diligence of a Court of Session action, Frost v Bulman, raised by Frost’s Law agents. Shortly thereafter followed the Mrs E Smith saga as noted above in the Unity narrative and Frost lost his legal representation. By mutual agreement Frost and Bulman reached a settlement – Frost released the arrested funds and both sides agreed to pay their own legal fees – the Reclaiming day in Frost v Bulman was missed in error by the Respondent and the court should have been notified.
Martin Frost does not believe he was vexatious in his litigation with John Bulman – Bulman’s claim was judicially reduced by some 90% and thereafter a extra-judicial settlement reached. The reclaim in Bulman v Frost made case law and appears in the annotated guide to the Court of Session Rules.
Tods Murray, Arakin, McNamara and Lady Smith
The Frost/Caine partnership is in partnership with Andrew McNamara – as such Frost, senior, does not believe that this cause should be considered under the Act – for the Act applies to natural persons. That said should this honourable court deem this cause worthy of consideration Martin Frost says the following:
Given that (a) Tods Murray v Arakin action is accepted by Tods Murray’s legal team as being an inglorious reflection on the Scottish legal profession and (b) Tods Murray’s offer to settle – it does seem more than a little inappropriate for the Petitioner to found on this cause – even if valid Lady Smith’s comments appear to be no better than a concentration camp’s guard’s grump that the inmate refused to be gassed silently.
Finally there still remains the issue of abuse of process by the Scottish Office/Lord Advocate whereby the Petition refers to current causes still awaiting adjudication before the courts as with Tods Murray v Arakin. The Petition paints an unrepresentative, contradictory and often factually incorrect or distorted picture. The Petition appears to break new ground for in the main the Petition relates to matters which are currently before the courts; thus in Frost’s analysis the Petition is a flagrant breach of his rights to a fair and an impartial hearing in these causes. The Petition seeks to prejudge matters that to date Senators have deemed are worthy of consideration.
McNamara, Frost and Alexander Stone
The Frost/Caine partnership is in partnership with Andrew McNamara – as such Frost, senior, does not believe that this cause should be considered under the Act – for the Act applies to natural persons. That said should this honourable court deem this cause worthy of consideration Martin Frost says the following:
Frost should be applauded – not described as vexatious for his conduct in this cause.
McNamara, Frost, the First Minister and Sheriff Peebles
The Frost/Caine partnership is in partnership with Andrew McNamara – as such Frost, senior, does not believe that this cause should be considered under the Act – for the Act applies to natural persons. That said should this honourable court deem this cause worthy of consideration Martin Frost says the following:
McNamara, Frost, and Levy & McRae
The Frost/Caine partnership is in partnership with Andrew McNamara – as such Frost, senior, does not believe that this cause should be considered under the Act – for the Act applies to natural persons. That said should this honourable court deem this cause worthy of consideration Martin Frost says the following:
Frost, Parkes and Cintec International Limited
Frost is in partnership with John Parkes – as such Frost, senior, does not believe that this cause should be considered under the Act – for the Act applies to natural persons. That said should this honourable court deem these causes worthy of consideration and jurisdiction Martin Frost says the following:
Martin Frost, senior, respectfully requests the following additionally Scottish causes are also taken into consideration.
Customs & Excise (VAT) v Frost 1982 Tribunal Refund agreement on farming receipts. Bank of Scotland v Frost 1983 Court of Session Decree of Absolvitor in respect of alleged debt of £10,000 Twomax Limited v Dickson, McFarlane & Robinson 1983 Court of Session Frost agreed to purchase action rights from Cork Gulley, Receivers of Twomax – action successful in Outer House but damages quantum negated in Inner House – set precedence for auditors’ liability as to published accounts. Thereon Frost profitably underwrote/purchased approximately another twenty Scottish causes from insolvencies in Scotland – such legal dealing assisted Frost in his partnership with James Longcroft resulting in Frost’s involvement in Al Nakib Investments (Jersey) Limited and another v Longcroft and others 1990, Chancery Division re liability for statements in a Company Prospectus. Barclays Bank v Frost 1986 Court of Session Frost’s agents negotiated a guarantee liability by which Barclays lent fresh money to Frost to provide part payment on a guarantee liability. Nat West Bank v Frost 1988 Court of Session Mr Woolman Q.C. negotiated a £30,000 settlement out of a potential £220,000 bank guarantee liability. Borders Council v Frost 1993 Jedburgh Sheriff Court Successful Frost outcome in property dispute. Carnaby Caravans v Frost 1994 Court of Session Associated with Unity Trust action – negotiated guarantee settlement. Scottish Water v Frost 1994 Jedburgh sheriff Court Small Frost win of £400 with agreement to make good water damage. Rettie v Frost 1994 Jedburgh Sheriff Court Action dropped Robinson & Wilkinson v Frost 1995 Court of Session Action
sisted then pursuers disappeared.
Frost v Michael Atchison 1995 Selkirk sheriff Court Frost recovered £25,000 plus costs Petition by The Accountant in Bankruptcy for Recall of Sequestration of James Esplin Thomson 1995 Opposed the Recall, won, and obtained an award of expenses against the Accountant in Bankruptcy which despite reminders she has not paid – she is currently also Frost trustee in his sequestration (conflict of interest?) Loch Rannoch v Frost 1998 Jedburgh sheriff Court Secured damages and expenses of £300 Frost v Inland Revenue 1999 Court of Session Inland Revenue were considering new insolvency proceedings in Scotland against Frost – Frost secured undertaking from Revenue not to do and Frost’s tax affairs were all transferred to England. Merlin Assets Limited 1999 Court of Session As Respondent both in the Outer and Inner house Frost lost to the Inland Revenue Thomson Ecosse Limited 1999 Court of Session As Respondent in the Outer House Frost reached an accommodation with the Inland Revenue Frost v Scottish Borders Council 2000 Remitted to Court of Session. Frost secured interim interdict and thereafter cause sisted for settlement. Warwick & Frost v Scottish Borders Enterprise Limited Lost in Sheriff Court – under appeal at the Court of Session Frost v Warner & Co 2000 Edinburgh Sheriff Court Won damages and expenses of some £30,000 from various law firm partners Frost Respondent in Arrowsmith’s Petition to wind up the Scottish Academic Press 2000 Court of Session Respondent took appeal of Sheriff Lothian’s winding up order to Inner House where of consent Frost’s appeal was granted. Frost v Savina Properties Limited 2001 Edinburgh Sheriff Court Frost secured over £100,000 of property – cause currently awaiting intromission by Frost’s trustee. Dr Blair v Frost 2001 Edinburgh Sheriff Court 2001 Proof set down but as result of the Arrowsmith win would have settled had it not been for Cintec’s sequestration petition Frost & McNamara v Usher 2003 Jedburgh Sheriff Court Secured Inner house reclaiming motion prior to abandoning case on payment of expenses when it was discovered that Usher had not had title to sell. Petition by Martin Frost for the Recall of his Sequestration Court of Session 2004 Pending Horseshoe Gallery v Frost & McNamara 2004 Jedburgh Sheriff Court Won on appeal to the Sheriff Principal December 2004 Frost v Rodger Fish and Company Ltd December 2004 Court of Session Industrial accident claim – proof set down for February 2006, notwithstanding the vexatious litigant order Lord Johnstone allowed Frost to proceed.
Human Rights Issues: In the Petition of ‘The Lord Advocate v James Bell 23rd March 2001’ the Court of Session held that the operation of the Vexatious Actions (Scotland) Act, 1898 was not incompatible with Article 6 of the Human Rights Act. ‘As regards compatibility with the European Convention, counsel for the petitioner referred to H. v. U.K. 1985 45 Decisions and Reports 281, a decision of the Commission, which considers previous court decisions and holds that a limitation imposed to restrict the activities of a vexatious litigant is compatible with the requirements of Article 6. An order under the 1894 Act does not prevent the respondent from raising actions altogether: it only requires that he should obtain leave from a Lord Ordinary before doing so. In the light of the decision of the Commission and the authorities referred to in it we are satisfied that there is no substance in the respondent's complaint on this head.’The above said the current Respondent doubts if such logic is applicable to the interim order granted in this Petition. Furthermore, the Respondent believes that the Petitioner has failed to give sufficient weight to the doctrine of a margin of appreciation and the principle of proportionality – in short the Petitioners subjective view and haphazard sampling of causes in which the Respondent has played a role breaches Frosts right to a fair determination.
4. History & Background of
Respondent Frost, senior Businessman – made money from textiles; munitions; oil, energy and finance. Family is moderately wealthy.
TO WHOM IT MAY CONCERN Edenside Kelso TD5 7BS 2003-09-20 Frost and McNamara M Frost and A McNamara have ceased to operate as a unit. Both parties suffer from physical and mental ill health which has exacerbated their partnership. McNamara blames Frost for legal stupidity and accuses Frost of financial mismanagement. Frost accuses McNamara of lying to him, fabricating the truth, malicious rumour mongering, and an ability to secure convenient lapses of memory matched by unwillingness to honour unpleasant obligations. That said Frost still believes that the McNamara family were wronged by their legal advisors Tods Murray, and that Alexander Stone (Burness) and Levy & McRae failed to render a professional service which does amount to professional incompetence and negligence. Frost will continue to assist the McNamara family in securing appropriate and full recompense for their loss and hurt. Frost will seek to amend his position in each of the cases, as noted below, to reflect his position distinct from that of A McNamara. Frost will make no claim for Arakin Pension Fund damages and his Arakin assigned claims will be vastly reduced.
The causes affected are: Tods Murray v Arakin: Court of Session. Frost reduces his claim to £400k McNamara & Frost v Levy & McRae : Court of Session. Frost reduces his claim to £400k Frost & McNamara v Alexander Stone: Court of Session. Frost reduces his claim to £150k McNamara & Frost v First Minister and Sheriff Peebles: Court of Session Frost wishes to abandon. Frost & McNamara v Brodies: Jedburgh Sheriff Court. Frost & McNamara have abandoned. Stirling v Frost & McNamara: Jedburgh Sheriff Court. Frost wishes to settle.
Further parties are: Peter Zani: A genuine victim of bad justice. Despite spending some time on this assignation prescription blocks further action and so assignation along with redemption returned to him. Joan Pentland-Clark: A genuine victim of some bad justice but re-assignation withheld until appropriate court order or her solvency proved. James Clark: Enquiry reports failed to justify his claims; assignation returned with suggestion he finds work. Stuart Usher: A fantastic family man. Assignations returned. I very much like Stuart and his ideals but it would be best if he developed his land at Norton. Scotland against Crooked Lawyers: A reflection on the Scottish legal system: has prompted some good things but should act more responsibly. Sometimes it is their member at fault and so they do an ill service to many an innocent citizen. A personal note. Had I wished to be a lawyer I would have been. I did not nor do I wish to be a member of the legal fraternity. Sadly, I now have more sympathy for the average embattled professional than his or her decrier. Agreed standards need to be improved, but again I believe that those using a professional’s services should also respect their locus. In the last four years I have spent over £40,000 on books and another £10,000 or more on relevant computers and software. If I add in overheads, outlays, deposits, and expenses another £150,000 is quickly added to the bill. Again if I add on the potential liabilities acquired en route approximately a further £250,000 requires provision. Against this I have received some £60,000 in defrayed expenses but otherwise my income has been zero. Now as I have worked some 12,000 hours it takes no great genius to calculate that it costs me some £32.50 to work an hour. In short my good friend Mr McNamara is quite correct to suggest that I am not the best profit centre; equally it explains to me why the average professional does require a meaningful hourly rate for his services. This verdict, I regret, does not fall well with many of my associates, they are entitled to their views, myself I exit the stage. Kind regards Martin Frost 5. History of Vexatious ActionsTHE
HISTORY OF VEXATIOUS LITIGANT STATUTES
IN THE UNITED KINGDOM (including the CHANNEL ISLANDS)
ENGLAND
AND WALES This was the first Vexatious Litigant statute of its kind in the world and is the ancestor and original source for all other Vexatious Litigant Statutes world-wide. As can be seen by the original debate in the House of Commons on August 10, 1896, some MPs had grave misgivings about the constitutionality of the Bill by removing otherwise unfettered access to the courts, and the comments as to whether such a Bill would have been introduced to protect ordinary people if the Archbishop of Canterbury had not been involved are particularly pertinent. The Bill passed into law on August 14, 1896 and became the Vexatious Actions Act, 1896 and extended to England and Wales only. It was consolidated into section 51 of the Supreme Court of Judicature (Consolidation) Act, 1925 in identical terms which came into force on July 31, 1925, and was subsequently amended by the Supreme Court of Judicature (Amendment) Act, 1959 to prohibit appeals against refusals of leave to bring proceedings once a person had been made vexatious and to cover ongoing actions and introduced as a Private Members Bill. See Hansard, (Commons), February 12, March 6, 1959 and Hansard, (Lords), May 5, 1959. Of particular interest is the speech by Lord Conesford on May 5, 1959. The Supreme Court of Judicature (Amendment) Act, 1959 came into force on May 14, 1959, and was consolidated and amended by section 42 of the Supreme Court Act, 1981 to cover applications made in any pending proceedings whether brought by the litigant or not and replacing "prima facie" with "reasonable grounds" as criteria for granting of subsequent leave to vexatious litigants to bring or continue with proceedings etc. The Supreme Court Act, 1981 was enacted July 28, 1981 and came into force on January 1, 1982. It was amended by section 24 of the Prosecution of Offences Act, 1985 to provide for a "civil proceedings order" in respect of purely civil proceedings and a "criminal proceedings order" relating to criminal prosecutions considered to be vexatious, and an all proceedings order to encompass both forms of proceedings. The Prosecution of Offences Act, 1985 came into force in 1986; the application is brought by the Attorney-General. From 1944 onwards, HM Attorney-General delegated to HM Solicitor-General the "function" of making the application under section 1(1)(c) of the Law Officers’ Act, 1944. Applications are now brought by the HM Solicitor-General on behalf of the HM Attorney-General in his name under section 1(1) and (4)(b) of the Law Officers Act, 1997. SCOTLAND The Vexatious Actions (Scotland) Bill was introduced in the House of Lords in 1898 and after being passed by both Houses became the Vexatious Actions (Scotland) Act, 1898 on August 12, 1898. It was amended by section 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Act, 1980 to prohibit appeals against refusals of leave by the Lord Ordinary. As this is the only amendment made to the original Act, the Act does not presently prohibit the continuance of proceedings already instituted prior to the making of the Vexatious Litigation Order or applications without leave in ongoing proceedings. See Hansard, (Lords), July 3, 1979. Of particular interest is the speech by the Earl of Mansfield, Minister of State for the Scottish Office. The application is brought by the HM Lord Advocate. From 1944 onwards, HM Lord Advocate delegated to HM Solicitor-General for Scotland the "function" of making the application under section 2(1)(c) of the Law Officers’ Act, 1944. NORTHERN IRELAND The Judicature (Northern Ireland) Act, 1978 was introduced by the Westminster Parliament under direct rule and included in section 32 similar powers as in England and Wales for the Attorney-General to apply for a Vexatious Litigant Order. However, section 32 does not presently prohibit appeals against refusals of leave and does not prohibit applications without leave in ongoing proceedings. Section 32 orders also apply to inferior tribunals unlike England and Wales, Scotland and Guernsey. The application is brought by HM Attorney-General. From the enactment of the Judicature (Northern Ireland) Act, 1978, HM Attorney-General for Northern Ireland, who is the same as for England and Wales, delegated to HM Solicitor-General for England and Wales the "function" of making the application under section 1(1)(c) and 3 of the Law Officers’ Act, 1944. Applications are now brought by the HM Solicitor-General for England and Wales on behalf of the HM Attorney-General for Northern Ireland in his name under section 2(1) and (4)(b) of the Law Officers Act, 1997. GUERNSEY The Restriction of Vexatious Legal Proceedings (Guernsey) Law, 1985 was passed by Order in Council on July 31, 1985 in response to a meeting of the States of Deliberation dated 27 June 1984 and their resolution dated 26 September 1984. However, the Restriction of Vexatious Legal Proceedings (Guernsey) Law, 1985 does not presently prohibit the continuance of proceedings already instituted prior to the making of the Vexatious Litigation Order and applies only to the Magistrates’ Court but not the Royal Court. The application is brought by the HM Procureur. JERSEY A similar provision to that of Guernsey is being considered and proposed to be introduced by Order in Council after consultation.
CHAPTER 51. An Act to prevent Abuse of the process of the High Court and other Courts by the Institution of vexatious Legal Proceedings. [14th August 1896.] BE it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this Present Parliament assembled, and by the authority of the same, as follows : Power of court to prohibit institution of action without leave 1. It shall be lawful for the Attorney-General to apply to the High Court for an order under this Act, and if he satisfies the High Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons, the court may, after hearing such person or giving him an opportunity of being heard, after assigning counsel in case such person is unable on account of poverty to retain counsel, order that no legal proceedings shall be instituted by that person in the High Court or any other court, unless he obtains the leave of the High Court or some judge thereof, and satisfies the court or judge that such legal proceeding is not an abuse of the process of the court, and that there is prima facie ground for such proceeding. A copy of such order shall be published in the London Gazette. 2.––(1.) This Act shall not extend to Scotland or Ireland. (2.) This Act may be cited as the Vexatious Actions Act, 1896. Vexatious Actions (Scotland) Act 1898 CHAPTER 35. An Act to prevent vexatious Legal Proceedings in Scotland. [12th August 1898.] BE it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this Present Parliament assembled, and by the authority of the same, as follows : Power of Court of Session to prohibit institution of action without leave 1. It shall be lawful for the Lord Advocate to apply to either Division of the Inner house of the Court of Session for an order under this Act, and if he satisfies the Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court, and whether against the same person or against different persons, the Court may order that no legal proceedings shall be instituted by that person in the Court of Session or any other court, unless he obtains the leave of the Lord Ordinary on the Bills in the Court of Session, having satisfied the Lord Ordinary that such legal proceeding is not vexatious, and that there is prima facie ground for such proceeding. A copy of such order shall be published in the Edinburgh Gazette. l A decision of the Lord Ordinary to refuse leave, under section 1 of this Act, to institute legal proceedings shall be final. 2. This Act may be cited as the Vexatious Actions (Scotland) Act, 1898. Section 42 of the Supreme Court Act 1981 Restriction of vexatious legal proceedings 42.––(l) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground–– (a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or (b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another; or (c) instituted vexatious prosecutions (whether against the same person or different persons), the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order, a criminal proceedings order or an all proceedings order. (1A) In this section–– "civil proceedings order" means an order that–– (a) no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made; (b) any civil proceedings instituted by him in any court before the making of the order shall not be continued by him without the leave of the High Court; and (c) no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court; "criminal proceedings order" means an order that–– (a) no information shall be laid before a justice of the peace by the person against whom the order is made without the leave of the High Court; and (b) no application for leave to prefer a bill of indictment shall be made by him without the leave of the High Court; and "all proceedings order" means an order which has the combined effect of the two other orders. (2) An order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely. (3) Leave for the institution or continuance of, or for the making of an application in, any civil proceedings by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application. (3A) Leave for the laying of an information or for an application for leave to prefer a bill of indictment by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the institution of the prosecution is not an abuse of the criminal process and that there are reasonable grounds for the institution of the prosecution by the applicant. (4) No appeal shall lie from a decision of the High Court refusing leave for the institution or continuance of, or for the making of an application in legal proceedings by a person who is the subject of an order for the time being in force under subsection (1). (5) A copy of any order made under subsection (1) shall be published in the London Gazette. Judicature (Northern Ireland) Act 1978 Restriction on institution of vexatious actions 32.––(1) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court or tribunal, and whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order–– (a) that no legal proceedings shall without the leave of the High Court be instituted by him in any court or tribunal ; (b) that any legal proceedings instituted by him in any court or tribunal before the making of the order shall not be continued by him without such leave ; and such leave shall not be given unless the court is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings. (2) The court may in its discretion assign a solicitor or counsel to any person against whom an order is sought under this section and the expenses of any such solicitor or counsel shall be taxed and paid out of the legal aid fund. (3) A notice of the making of any order under this section shall be published in the Belfast Gazette. Restriction of Vexatious Legal Proceedings (Guernsey) Law 1985 THE STATES, in pursuance of their Resolution of the 27th day of June, 1984, have approved the following provisions which, subject to the Sanction of Her Most Excellent Majesty in Council, shall have force of law in the Island of Guernsey. ORDER IN COUNCIL Restriction of vexatious legal proceedings 1. (1) If, on an application made by Her Majesty’s Procureur or Her Majesty’s Comptroller under this section, the Royal Court. sitting as an Ordinary Court, is satisfied that any person has habitually and persistently and without any reasonable ground–– (a) instituted vexatious legal proceedings in the Magistrate’s Court whether against the same person or against different persons; or (b) made vexatious applications in any legal proceedings in the Magistrate’s Court, and whether instituted by him or another, the Court may, after hearing that person or giving him an opportunity of being heard, order–– (i) that no legal proceedings shall without the leave of the Royal Court be instituted by him in the Magistrate’s Court; and (ii) that any legal proceedings instituted by him in the Magistrate’s Court before the making of the order shall not be continued by him without the leave of the Royal Court; and (iii) that no application shall without the leave of the Royal Court be made by him in any legal proceedings instituted, whether by him or another, in the Magistrate’s Court. (2) An order under subsection (1) of this section may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely. (3) Leave for the institution or continuance of, or for the making of an application in, any legal proceedings by a person who is the subject of an order for the time being in force under subsection (1) of this section shall not be given unless the Royal Court is satisfied that the proceedings or application are not an abuse of the process of the Court and that there are reasonable grounds for the proceedings or application. (4) No appeal shall lie from a decision of the Royal Court refusing leave for the institution or continuance of, or for the making of an application in legal proceedings by a person who is the subject of an order for the time being in force under subsection (1) of this section. (5) A copy of any order made under subsection (1) of this section shall be published in the Gazette Officielle. Powers of the Bailiff 2. The powers of the Royal Court under section 1 of this Law shall be exercised by the Bailiff sitting alone. Rules of the Royal Court 3. The Royal Court may, from time to time, make Rules dealing generally with all matters of procedure and incidental matters arising under this Law and for carrying this Law into effect. Savings 4. Nothing in this Law shall derogate from any jurisdiction hitherto vested in the Royal Court to restrict vexatious legal proceedings. Interpretation 5. (1) In this Law–– "The Bailiff" means the Bailiff, the Deputy Bailiff, a Lieutenant Bailiff or the Juge Délégué; "the Magistrate’s Court" means the Court established under and by virtue of the Magistrate’s Court (Guernsey) Law, 1954 (2) Except in so far as the context otherwise requires, any reference in this Law to any other enactment shall he construed as a reference to that enactment as repealed and re-enacted, amended, extended or applied by or under any other enactment including this Law. Citation 6. This Law may be cited as the Restriction of Vexatious Legal Proceedings (Guernsey) Law, 1985.
The above (a general guide) will be added to not only in number but in depth – in the large part, this glossary is taken from US court practice – it will be augmented by English and Scottish glossaries Vexatious -- Pronunciation: (vek-sa'shus), —adj. 1. causing vexation; troublesome; annoying: a vexatious situation. 2. Law.(of legal actions) instituted without sufficient grounds and serving only to cause annoyance to the defendant. 3. disorderly; confused; troubled.
Vexatious litigation: Taken from Wikipedia Vexatious litigation is that which is brought, regardless of its merits (usually it has none) 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. It is an abuse of the judicial process and almost always brings down sanctions on the offender. Repeated and severe instances by a single lawyer can result in his eventual disbarment. In some jurisdictions, there is also a list of vexatious litigants, generally people who have repeatedly abused the legal system and who choose to represent themselves rather than employ a lawyer. Those on the list are in general forbidden from any further legal action or require permission from a senior judge to do so. The process by which a person is added to the list varies between jurisdictions. In English law and legal systems derived from it, a vexatious litigant is someone who is debarred from bringing a case to court because they have previously abused the legal system. For example, under California law (Code of Civil Procedure, section 391(b)) a vexatious litigant is someone in one of the following categories: 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.
Abuse of process: from Wikipedia Abuse of process is a common law intentional tort. It is to be distinguished from malicious prosecution, another type of tort that involves misuse of the public right of access to the courts. The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: it is the malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action. "Process" in this context is used in the same sense as in "service of process," where "process" refers to an official summons or other notice issued from a court. The person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" considered to be capable of abuse.
Malicious prosecution: from Wikipedia Malicious prosecution is a common law intentional tort (delict). While similar to the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting or pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favour of the victim of the malicious prosecution. In some jurisdictions, "malicious prosecution" is reserved for the wrongful initiation of criminal proceedings, while "malicious use of process" refers to the wrongful initiation of civil proceedings. Criminal prosecuting attorneys, as well as judges, are normally protected, by doctrines of prosecutorial immunity and judicial immunity, from tort liability for malicious prosecution.
Frivolous lawsuit: from Wikipedia A lawsuit is termed frivolous if it is brought in spite of the fact that both the plaintiff and his lawyer knew that it had no merit and it did not argue for a reasonable extension or reinterpretation of the law or no underlying justification in fact based upon the lawyer's due diligence investigation of the case before filing (i.e. the well known U.S. Federal Rule 11). Since it wastes the court's and the other people's time, resources and legal fees, it may result in sanctions being levied by the court upon the party or the lawyer who brings the action. The standard references for legal terms--American Jurisprudence, Corpus Juris Secundum, amd Words and Phrases--contain no entry for "frivolous lawsuit" (although there are entries for "frivolous pleading" which means a pleading which is nothing more than a copy of a previous pleading, and "frivolous appeal" which means an appeal that has no chance of succeeding). In recent years, concerns about frivolous lawsuits have become a political issue, with various interests asserting that such litigation has increased the costs of goods and services, particularly in the health care industry. However, these arguments tend to misuse the term, applying it to suits in which excessive awards are reached by a jury. (In such cases, the jury didn't think it was frivolous.) Costs that are driven up by large jury verdicts can not be from frivolous lawsuits, because such suits will be discharged by the court before being considered by a jury. One area where frivolous lawsuits have been particularly burdensome on courts is in the area of in forma pauperis and pro se prison litigation. Because of the history of prisoners filing baseless suits (asserting for example, that their civil rights have been violated because they were given crunchy peanut butter instead of creamy) (note: a toothless prisoner cannot eat crunchy peanut butter), Congress passed and President Clinton signed the Prison Litigation Reform Act, which strictly limits the ability of prisoners to bring actions. Compare barratry, vexatious litigation, abuse of process and malicious prosecution. Stella Liebeck, the woman who spilled the McDonald’s coffee, was 79, in the passenger seat of a stopped car, and the coffee scalded her so badly that she suffered third-degree burns and needed skin grafts. During discovery, McDonald’s produced documents showing more than 700 claims from people burned by its coffee between 1982 and 1992. The judge reduced the jury award of $2.9 million in compensatory and punitive damages, and the woman settled for about $600,000. Barratry: from Wikipedia Two legal concepts go by the name barratry: one in criminal and civil law, the other in admiralty law. In criminal law, barratry is the act or practice of bringing repeated legal actions solely to harass. Usually, the actions brought lack merit. This action has been declared a crime in some jurisdictions. See also: champerty, SLAPP, vexatious litigation, abuse of process, malicious prosecution, forum shopping. In admiralty law, barratry is a fraudulent act committed by a master or crew of a vessel which damages the vessel or its cargo, including desertion, illegal scuttling, and theft of the ship or cargo. A third meaning also exists: the buying and selling of positions of authority, especially those within the church. This meaning is synonymous with simony.
Champerty: from Wikipedia In law, champerty is the practice of participating in a lawsuit in order to share in the proceeds by a person not naturally a party to the lawsuit, that is, buying into someone else's lawsuit. This practice is prohibited in some jurisdictions; in others, judges are considered to have the responsibility for policing such behaviour.
In Respect Whereof
Martin Frost 2005-10-24 |
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