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IN THE COURT OF SESSION
The Respondent Martin Frost’s
PRODUCTIONS
IN THE
Skeleton Argument
On the Lord Advocate’s Petition
For
An Order under the Vexatious Actions (Scotland) 1898
2005-10-25
‘The great concern is the planned use of vexatious litigant usage to
enable not only the courts but other public bodies to deny access to
those they largely judge subjectively as troublesome.’
INDEX
1.Extract from Hansard (Commons) May 25th, 2000
Vexatious Litigants
2.INMATE'S LAWSUIT REACHES STATE'S TOP COURT
3.Court puts clamps on bogus lawsuits
4.Killer deemed a vexatious litigant
5.VEXATIOUS SUIT, LITIGATION: A US judicial view
6.Vexation law – Contradiction of US principles
7.Q: When is a frivolous lawsuit not frivolous? A:
When it's filed by a corporation.
8.The myth of frivolous lawsuits: Tort reformers
can pick another cause
9.A US Myth: "Frivolous" lawsuits: "Frivolous" tort
cases are clogging the courts.
10. Another Myth: "Tort tax"
11. The Fake Crisis over Lawsuits: Who’s
Paying to Keep myths Alive?
12. The Myth of the Frivolous Lawsuit
13. The vexatious litigant before tribunals,
freedom of information applications:
a)National Health Boards: Conwy
& Denbighshire NHS Trust
b)Local Authorities: Bournemouth
Council
14.Attorney General v Akena Adoko - 20th May 2004
15. Bhamjee v Forsdick and Others [2003] EWCA Civ
1113
16. Lord Advocate v James Bell 23 March 2001
17. Frost v Unity Trust Bank: Lord Bonomy: 21 May
1999
18. Correspondence from Shepherd & Wedderburn to the Scottish
Executive and Lord Advocate.
(these are presented in portable document format and can be downloaded
or viewed with Acrobat Reader
1. Extract from
Hansard (Commons) May 25th, 2000
Vexatious Litigants
30. Mr. David Drew (Stroud): How many applications with regard to
vexatious litigants the Law Officers have dealt with over the past 12
months. [122432]
The Solicitor-General (Mr. Ross Cranston): In the past 12 months the
High Court has considered 11 applications made by the Law Officers
under section 42 of the Supreme Court Act 1981. Of those 11
applications, nine resulted in orders being made, one application was
refused and one, although heard, awaits judgment. In the same period,
the employment appeals tribunal made two orders under section 33 of the
Industrial Tribunals Act 1996, which prevents applications to the
tribunal.
Mr. Drew: I thank my hon. and learned Friend for that reply. Obviously,
it is not without interest for the House, given this week's
proceedings.
25 May 2000 : Column 1106
What are the implications for the individuals concerned? Clearly, if an
order is served on someone, that can lead to considerable restriction
of his or her activities. Is that compatible with the European
convention on human rights?
The Solicitor-General: The Attorney-General and I give these
applications close consideration when they come before us. One of my
constituents is a vexatious litigant, and he constantly reminds me, in
the nicest possible way, of the implications that the order has for
him.
We carefully consider such applications, which must then be considered
by two High Court judges sitting in the divisional court. On the human
rights aspect, Strasbourg has considered the matter on two occasions
and said that the orders are compatible with the ECHR. The test is very
high. The statute requires habitual and persistent behaviour, and it
must be reasonable in the circumstances for the court to make that
order. As the figures that I gave my hon. Friend indicate, the number
of applications is not significant.
An order does not prevent vexatious litigants from litigating, but they
have to seek the leave of the court to bring an action.
2. INMATE'S
LAWSUIT REACHES STATE'S TOP
COURT
Wednesday, November 15, 2000 NEWS 01C
By Alan Johnson
Dispatch Statehouse Reporter
Lonny Lee Bristow was silent, but his painful words echoed yesterday as
the Ohio Supreme Court heard an appeal from the poster child for Ohio's
"vexatious litigator'' law. In Bristow's hands, attorney Mark Landes
said, lawsuits have been "used, abused and thrust into the hearts and
souls of over a hundred victims.'' Landes' Columbus law firm has been
fighting a legal war against Bristow since 1993 on behalf of officials
in Bristow's home county of Richland.
Outside the Supreme Court chambers, some of Bristow's victims huddled
to discuss the case. Darlene Windsor -- Bristow's aunt and target of
lawsuits filed in 55 Ohio counties and the Nevada Supreme Court --
bemoaned the pain her nephew has caused. "He can do so much damage with
a pen and a piece of paper, a telephone and a computer,'' she said.
Bristow, 27, a Mansfield man incarcerated at the Ohio State
Penitentiary at Youngstown, has filed at least 137 lawsuits in Ohio and
other states. The state's most prolific jailhouse lawyer, Bristow
became the focus of Ohio's 1997 law aimed at curbing costly and abusive
suits. His lawsuits have cost Ohio taxpayers an estimated $100,000.
After his mail and court privileges were restricted, Bristow, not
surprisingly, went to court. His appeal ended up in the Supreme Court
after the 3rd District Court of Appeals in Crawford County struck down
the vexatious-litigator law.
Bristow did not appear in court yesterday, although he could have
because he acts as his own attorney. Instead, he filed a neat,
hand-printed brief claiming that the restrictions on his mail and
lawsuit-writing privileges violate his constitutional rights to freedom
of speech, privacy, due process and access to the courts. The oral
arguments yesterday and Bristow's brief will be considered by the court
in rendering a decision, probably early next year. Justices Deborah
Cook and Evelyn Lundberg Stratton excused themselves from hearing
Bristow's case because both were on a committee that drafted the
vexatious-litigator law. They were replaced by two appeals court judges.
Judith French, a lawyer representing Attorney General Betty D.
Montgomery, told justices that the restrictions do not amount to
"locking the door to the courtroom.'' Bristow could still file non
frivolous lawsuits, with court permission, or hire a lawyer to do it,
or seek relief in the federal courts, she said.
Bristow was sentenced in June 1998 to nine years, 11 months in prison
by Crawford County Judge Nelfred G. Kimerline for his conviction on 14
counts of telephone harassment of his aunt and Richland County public
officials, including the sheriff and judges. Earlier this year, Judge
Walter C. Lytten of Scioto County Common Pleas Court tacked on three
years and three months to Bristow's sentence after he masterminded the
most elaborate phone scam uncovered in an Ohio prison, stealing a
Dublin man's identity and racking up thousands of dollars in
credit-card and phone bills.
In September, after he was moved to the "supermax'' prison at
Youngstown -- where inmates are locked down 23 hours a day -- Bristow
somehow managed to file suits in three different counties. Bristow's
lawsuits often are filled with profanity, violent threats and obscene
sexual accusations. They usually are aimed at judges, law-enforcement
personnel and public officials. Although frivolous, the suits clog the
court system because lawyers must respond on behalf of named public
officials and law-enforcement employees.
3. Court puts
clamps on bogus lawsuits
Saturday, December 30, 2000: By Catherine Candisky
Dispatch Statehouse Reporter
Lonny Lee Bristow will need a new prison hobby.
In a 5-2 decision yesterday, the Ohio Supreme Court upheld the
constitutionality of Ohio's vexatious-litigator law, effectively
putting Bristow's lawsuit-filing days behind him. The 1997 statute aims
to restrict illegitimate, costly and often harassing lawsuits.
Persistent filers deemed to be vexatious litigators still can initiate
non frivolous lawsuits with court permission. Bristow, a Mansfield man
serving 13 years in the Ohio State Penitentiary at Youngstown, had
filed about 135 lawsuits when the Supreme Court heard arguments in the
case Nov. 14. Since then, he has filed 17 more. He has sued family and
acquaintances, law-enforcement officers and their families and a
Dispatch reporter.
In a 27-page ruling, Justice Alice Robie Resnick wrote that "Bristow
attempts to make a mockery of the judicial system . . . .
"Although he knows he will never win a judgment, he gets revenge each
time the defendants pay their attorney fees and court costs. For the
cost of a stamp, Bristow has found a way to inflict his revenge on the
defendants and the general taxpaying public. The only effective and
fair way to curb his abuse is to take away the procedural privilege he
has twisted into a weapon.'' The court, however, found that the
Crawford County Common Pleas Court overstepped its authority by
ordering that Bristow's outgoing mail be routed through a judge for
review. The order was requested by Richland County Prosecutor James J.
Mayer Jr. to ensure the ban wasn't being violated. "While we
sympathize with Mayer and the trial court under these exceedingly
difficult circumstances, we find no authority to support this order, as
it exceeds the scope of the court's inherent powers,'' Resnick wrote.
Under Ohio's law, the Supreme Court notifies local courts of the names
of anyone dubbed a vexatious litigator, leaving it to court officials
to weed out any invalid lawsuits.
After his mail and court privileges were restricted, Bristow filed the
lawsuit that led to yesterday's ruling. The 3rd District Court of
Appeals in Crawford County had deemed the law unconstitutional. Supreme
Court review was prompted by two other appellate courts upholding the
statute. Columbus attorney Mark Landes, who has fought Bristow on
behalf of Richland County officials, said Bristow has harassed more
than 100 people with groundless lawsuits. In a suit filed against the
daughter of a detective, Bristow alleged in lurid detail that the girl
had been sexually molested by her father. Bristow, 27, was
sentenced in 1998 to nine years for telephone harassment of his aunt.
Earlier this year he received an additional three years for a
behind-bars scam to steal a Dublin man's identity and rack up thousands
of dollars in credit-card and phone bills.
He has filed the suits acting as his own attorney, and many are filled
with obscenities, threats and wild accusations. Although the suits are
frivolous, defendants still must respond. Officials estimate the suits
also have cost taxpayers about $100,000 in court and legal expenses.
While pleased with the court's decision to uphold the law's
constitutionality, Landes said enforcement will be tough without the
ability to review Bristow's outgoing mail. After being banned from
filing in Ohio courts, Landes noted, Bristow began filing lawsuits in
out-of-state courts including Arizona and California.
"The (lower) court was just trying to plug a leak that had let him
continue filing lawsuits,'' Landes said. "The ruling creates a
practical problem for a very persistent guy.''
Justice Paul E. Pfeifer and Judge Peter B. Abele of the 4th District
Court of Appeals, who sat on the case for recused Justice Evelyn
Lundberg Stratton, dissented. "I am concerned that a valid complaint
may not receive the attention it deserves simply because it was filed
by a vexatious litigator,'' Pfeifer wrote in a two-paragraph dissent.
"Our courts are open to all who have been injured whether or not they
have frivolously cried 'Wolf' too many times in the past.''
4. Killer deemed
a vexatious litigant
By Jewel Topsfield October 20, 2004
Hoddle Street mass murderer Julian Knight has been banned from
launching legal battles over his prison grievances for the next 10
years. Knight will be required to seek Supreme Court permission before
bringing legal proceedings after Justice Tim Smith yesterday granted an
application by Attorney-General Rob Hulls to have him declared a
vexatious litigant. Knight, 35, has instigated legal proceedings 16
times in the past three years over his treatment in the prison system;
the court found that 13 were vexatious. Justice Smith said in the
Supreme Court yesterday that Knight, 35, "habitually" pursued hopeless
proceedings. "He is obviously an intelligent man but refuses to accept
the obvious soundness of the decisions given against him and has
demonstrated a habit of pursuing vexatious claims and doing so
persistently," he said in his judgement.
Knight is serving a 27-year jail term after killing seven people and
wounding 19 in a shooting rampage in 1987. His legal challenges have
cost the Justice Department more than $250,000. In the most recent
claims, heard in the Supreme Court last October, Knight alleged that
Barwon Prison officers opened his legal mail, which is privileged. He
also claimed he was unfairly disciplined when nails concealed in pens
and knives secreted in a magazine were found in his cell. Justice
Philip Cummins dismissed the claims, describing the complaints as
unjustified and at best nitpicking. As a vexatious litigant, Knight
will have to demonstrate the possible merit of any case before
authorities respond to it.
Mr Hulls yesterday welcomed the decision. "No person . . . should be
able to abuse the court system, cost taxpayers hundreds of thousands of
dollars in legal fees and take up court time by continually bringing
vexatious, frivolous and unmeritorious claims," he said. "It's only in
pretty extraordinary circumstances that an attorney-general would make
an application to have someone declared a vexatious litigant," he said.
"I believe that the matter of Julian Knight was quite extraordinary."
In the past 10 years, five Victorians have been declared vexatious
litigants by the Supreme Court.
5. VEXATIOUS
SUIT, LITIGATION: A US judicial view
A vexatious suit is one which has been instituted maliciously, and
without probable cause, whereby a damage has ensued to the defendant.
The suit is either a criminal prosecution, a conviction before a
magistrate, or a civil action. The suit need not be altogether without
foundation; if the part which is groundless has subjected the party to
an inconvenience, to which he would not have been exposed had the valid
cause of complaint alone have been insisted on, it is injurious.
To make it vexatious, the suit must have been instituted maliciously.
As malice is not in any case of injurious conduct necessarily to be
inferred from the total absence of probable cause for exciting it, and
in the present instance the law will not allow it to be inferred from
that circumstance, for fear of being mistaken, it casts upon the
suffering party the onus of proving express malice.
It is necessary that the prosecution should have been carried on
without probable cause. The law presumes that probable cause existed
until the party aggrieved can show to the contrary. Hence he is bound
to show the total absence of probable cause. He is also under the same
obligation when the original proceeding was a civil action.
The damage which the party injured sustains from a vexatious suit for a
crime, is either to his person, his reputation, his estate or his
relative rights.
1. whenever imprisonment is occasioned by a malicious unfounded
criminal prosecution, the injury is complete, although the detention
may have been momentary, and the party released on bail.
2. When the bill of indictment contains scandalous aspersions likely to
impair the reputation of the accused, the damage is complete.
3. Notwithstanding his person is left at liberty, and his character is
unstained by the proceedings, (as where the indictment is for a
trespass) yet if he necessarily incurs expense in defending himself
against the charge, he has a right to have his losses made good.
4. If a master loses the services and assistance of his domestics, in
consequence of a vexatious suit, he may claim a compensation.
With regard to a damage resulting from a civil action, when prosecuted
in a court of competent jurisdiction, the only detriment the party can
sustain, is the imprisonment of his person, or the seizure of his
property, for as to any expense, he may be put to, this, in
contemplation of law, has been fully compensated to him by the costs
adjudged. But where the original suit was coram non judice, the party
as the law formerly stood, necessarily incurred expense without the
power of remuneration, unless by this action, because any award of
costs the court might make would have been a nullity. However, by a
late decision such an adjudication was holden unimpeachable, land that
the party might well have an action of debt to recover the amount. So
that the law, in this respect, seems to have taken a new turn, and,
perhaps, it would now be decided, that no action can under any other
circumstances but imprisonment of the person or seizure of the
property, be maintained for suing in an improper court.
6. Vexation law
– Contradiction of US principles
The tort “reform” movement contradicts conservative
principles of the
party of Lincoln, like promoting personal responsibility, limited
government spending, and family values.
Everyone should be responsible for their own wrongdoing—corporations as
much as individuals. When a company’s products harm someone, or when
workplace conditions make employees chronically ill, that company
should compensate the injured person for the harm it’s caused.Civil
lawsuits protect children and families. Economic loss and illness can
tear families apart. Compensating them for their injuries helps them
stay together. And the jury system does this by making wrongdoers—not
taxpayers, through government-funded benefits programs—foot the bill
for these costs. The civil justice system is a free-market mechanism:
Individuals bring lawsuits without government interference. And jury
verdicts allow ordinary Americans to hold more powerful wrongdoers
accountable, and prevent them from causing future harm.
7. Q: When is a
frivolous lawsuit not frivolous?
A: When it's filed by a corporation.
One complaint about plaintiff's lawyers is that they file
frivolous
lawsuits against big corporations to try and make a few bucks by
settling. Many people believe that this purported behaviour is so
bad that we need to reform the legal system. So why is it OK when
corporations behave the same way? Monster Cable has been filing
shakedown suits against anyone who uses the word Monster in their
business, such as: Monster.com; Monster Garage; Disney, because of
Monsters, Inc.; Monster Cable is even trying to squash small
businesses that dare to use the word "Monster."
The suits are supposedly brought because Monster Cable is afraid that
consumers will think that Monster Cable is associated with anyone else
who uses the word Monster in its business. I'm pretty sure that
no one said, "Hey, Monster Cable just hired Pixar to make an awesome
movie about Monsters. Let's go see it NOW!"
Maybe Monster Cable will sue me for telling the truth about their
product: It's not worth the price premium over regular brands of cable.
Here's an excerpt from a great article at Forbes about Monster Cable:
TO ENCOURAGE audio salesmen to push its costly stereo cables, 12 times
a year Monster Cable flies a dozen or so top producers from stores
around the country to all-expenses-paid weekends at places like the
Napa Valley, Hawaii and Germany.
Founder, chairman and sole owner Noel Lee even lets the star
salespeople zoom around in his 13 sports cars, including a $200,000
Ferrari. Lee needs good salespeople because his product requires lots
and lots of selling. Buy a $400 stereo from the Good Guys in California
and chances are you'll also walk out with $50 worth of Monster cables.
Buy a $1,000 Marantz amplifier from Ken Crane's Home Entertainment in
California and you'll get sold on a $100 connecting cable.
This reveals one of the great hypocrisies about tort reform: Business
wants limits, caps, and restrictions on personal injury cases, where
they're usually the defendants, but they want no limits, caps, or
restrictions on financial injury cases, where they're often the
plaintiffs. My latest thought on the Monster Cable Lawsuits is
here. Or go here and find out why what Monster Cable is doing
would make a great episode of The Sopranos.
8. The myth of
frivolous lawsuits: Tort
reformers can pick another cause;
Hawaii doesn't have a problem with rampant litigation
By Richard Turbin -- Special to the Star-Bulletin
One of the great myths in Hawaii's political culture is that
legislation is needed to limit lawsuits. Big business and insurance
interests are lobbying fast and furious for such litigation, using
slogans like, "In order to make Hawaii business competitive, we must
eliminate frivolous lawsuits!"
We hear rumours that "we are in the midst of a 'litigation explosion'
with 'runaway juries.'" We are told of a "crisis" in the availability
and affordability of medicine because of glitches in the medical
liability system. Punitive damage awards are said to be
"skyrocketing!"
Current facts, however, reflect a far different scenario. Recent
statistics reveal that a frivolous lawsuit problem simply does not
exist in Hawaii or in any state.
The most comprehensive analysis on the subject, completed by one of the
most respected "think-tanks" in America, the RAND Institute for Civil
Justice, surfaced in the early '90s.
The evidence in the RAND report, bolstered by subsequent reports on the
subject, demonstrates that only 10 percent of people who are injured
ever use the tort system to seek compensation for their injuries.
According to the studies, between 1960 and 1990, average and median
jury verdicts barely kept pace with inflation.
In 1993, 61 percent of all new cases filed in state courts involved
traffic and ordinance violations; only 27 percent were civil cases, of
which only 9 percent involved torts. Of those cases, only 3.85 percent
"clogged the courts" by requiring a jury verdict.
While big business and insurance interests would have you believe that
frivolous lawsuits plague our courts, the truth is that, since 1991,
tort cases reflect only 6 percent of cases filed. Further, the number
of tort cases filed in Hawaii falls far below the national average.
If there is a problem with a litigation explosion, the cause of it more
accurately lies with America's big business interests, rather than with
the ordinary citizen. For example, Texas businessmen sue Oprah Winfrey
for millions of dollars because she criticizes their beef industry.
This is not an isolated incident. Between 1985 and 1991, business
disagreements made up nearly half of all federal litigation, with suits
over contract disputes outpacing any other single category.
Lawsuits between big businesses over contracts more than tripled in
federal courts between 1960 and 1988, while suits filed against them by
ordinary citizens declined 21 percent. Since 1986, lawsuits by average
citizens against small business operations and individuals have
declined 12 percent.
Ironically, despite their efforts to encourage legislation that would
curtail lawsuit filings, big business interests are adamant that such
restrictions should not apply to them. They argue that any constraint
over their right to file lawsuits against debtors and other businesses
would be unfair, as it would interfere with their right to earn a
profit.
Big business and insurance want a double standard. They want the right
to use our court system for themselves, but not for you and me.
American businesses are now the most competitive in the world. Yet big
business owners claim that escalating product liability lawsuits in
this country threaten their industrial might. Again, the facts clearly
do not support this allegation.
For example, federal courts products liability cases against Fortune
1000 companies have dropped from a high of 3,500 in 1985 to 1,500 in
1991. Moreover, in 1991, product liability insurance premiums amounted
to less than 1 percent of product retail sales, and between 1987 and
1993 product liability premiums fell 45 percent.
Over the last decade, the average payout per product liability claim by
insurance companies has been less than $6,000.
Large companies, while complaining about the threats of frivolous
lawsuits, are, in fact, realizing a downward trend in corporate
liability risk.
The Wall Street Journal reported that, in 1993, the total corporate
liability risk for all lawsuits, including product liability,
shareholder and employee discrimination lawsuits, totaled only $3.29
per $1,000 of revenue. Total corporate risk was down nearly 7 percent
for the previous year, with larger companies enjoying the largest
savings.
There is also heated debate surrounding the rising costs of the medical
liability system in this country. Erroneously, malpractice claims are
often blamed for the skyrocketing costs of health care.
To the contrary, available evidence indicates that changing the current
medical liability system would have very little effect on total
health-care spending. Only about 2 percent of those injured by a
physician's negligence ever seek compensation through a lawsuit.
In fact, medical malpractice claims have been declining since 1985 at
an average annual rate of 8.9 percent. Of the cases filed, doctors have
been winning in court 70.7 percent of the time. The bottom line is that
medical malpractice premiums amount to less than 1 percent of national
health-care costs.
This is not to say that frivolous lawsuits are never filed. Certainly,
for a minimal fee, any citizen can go down to the state courts and file
his or her lawsuit. After all, it is a free country. The question is,
what happens once a lawsuit is filed?
Under Rule 11 of the Hawaii and Federal Rules of Civil Procedure, the
lawyer and/or plaintiff who file a lawsuit can be fined substantial
monetary penalties if the judge finds that the filing was frivolous.
As a result, the plaintiff (and in certain cases the plaintiff's
attorney) can be sued for malicious prosecution.
Even when the lawsuit has merit, the litigation costs of the prevailing
party are the responsibility of the losing party. The losing party
rarely pays less than $10,000 to the winner. According to statistics,
the ordinary citizen usually loses the cases against a business; hence,
the poorer party ends up paying the litigation costs of the wealthier
party!
As the facts reveal, the public is being misled by claims that there is
a frivolous lawsuit problem escalating in America. Clearly, the driving
force behind the fallacy are powerful insurance and business interests
that finance lobbying efforts for legislation to limit consumer
lawsuits.
Fortunately, our civil justice system offers a way for ordinary people
to hold Hawaii's power elite accountable. Our civil justice system is a
system of restraint on those, who by virtue of economic power, do not
want to be restrained.
America's legal system is a linchpin of democracy. If we restrict
citizen's access to the courts, we are crippling the democratic order.
This country's judiciary system is one of the best in the world. Still,
there is clearly room for improvement. Litigation costs must be
reduced, and the explosion of expensive expert witnesses should be
contained.
In an attempt to curtail the soaring costs of litigation in our courts
today, various means of settling cases are being tested.
Arbitration, a positive innovation pioneered by Hawaii's Supreme Court,
is effective and a true cost-saving factor for Hawaii's citizens. In
use more and more across the country, arbitration is now mandatory for
most cases filed in state courts. In fact, most tort cases in Hawaii
now are being settled through arbitration. Mediation, another
alternative, is working to resolve still more cases across the land.
Also, some federal courts are experimenting with limiting expert
witnesses through a system of court-appointed experts, which results in
reduced litigation costs.
Every trial lawyer and judge knows that more needs to be done to reduce
the cost of litigation. But the worst thing we can possibly do is to
enact more legislation that prevents the average citizen hiring a
lawyer and using the courts.
Our tax dollar finances our court system. It would be unfair if only
Hawaii's wealthiest could afford access to it.
Richard Turbin is a Honolulu attorney and chairman-elect of the
Tort and Insurance Section of the American Bar Association, with 35,000
members the largest organization of insurance
and personal injury lawyers in the world.
9. A US Myth:
"Frivolous" lawsuits: "Frivolous"
tort cases are clogging the courts.
Tort “reformers” claim that too many lawsuits lead to increased costs
and delays in the civil justice system. President Bush twice denounced
“frivolous lawsuits” in his State of the Union address in January. But
researchers have been unable to confirm the existence of a “litigation
explosion.” Tort filings in state courts have declined by 9 percent
since 1992, according to the National Center for State Courts (NCSC).
The cases that are on the rise are contract cases—generally businesses
suing businesses. According to the Court Statistics Project, contract
filings have increased by 21 percent since 1995.
Civil litigation is decreasing in the federal courts as well. The
Administrative Office of the U.S. Courts found federal civil filings
dropped from 280,000 in 1998 to 265,000 in 2003, and the percentage of
personal injury cases in that time fell from 21.2 percent to 18.3
percent of all civil cases filed. Less than 20 percent of all federal
civil cases are tort cases, according to the U.S. Bureau of Justice
Statistics (BJS). The truth is, only 2 percent of Americans file
lawsuits, according to the Rand Institute for Civil Justice. In state
courts, only 5 percent of the tort cases filed go to trial; in federal
court, only 3.1 percent do, according to the BJS.
It is defendants who raise costs and drag out suits by stalling
discovery: Courts around the country have sanctioned corporate
defendants for withholding or destroying evidence, routinely filing
numerous objections, failing to produce documents and witnesses, and
hiding records or denying that they were ever kept. The McDonald’s
coffee case and others that have drawn media attention have distorted
the public perception of the legal system, giving people the impression
that huge sums are commonly awarded for questionable wrongs. In fact,
the media report only large verdicts or unusual cases that they deem
newsworthy. And the woman who spilled the McDonald’s coffee? She 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. An injured
person received a fair award. That’s the story that needs to be told.
10. Another
Myth: "Tort tax"
Plaintiff lawsuits hurt the U.S. economy by creating a so-called tort
tax on products and services.
That term, like tort “reform,” is only a clever marketing slogan.
Behind it is a concerted effort to let corporations off the hook and
take away the right to a jury trial. The excuse: that juries—that is,
ordinary citizens—too lightly give away too much money. The fact is,
the only people paying a “tort tax” are taxpayers, who have to pick up
the tab when a company’s misconduct leaves someone brain-damaged,
paralyzed, chronically ill, or dead. Eliminating juries and capping
damages just shifts the costs to overburdened government programs that
provide health and disability benefits.
The people crying “tort tax” say businesses are crippled by litigation
costs. But the real picture tells a different story. A 1999 survey by
Ernst & Young and the Risk and Insurance Management Society found
that liability costs have actually declined. The study found that
companies paid only $5.20 in liability costs for every $1,000 in
revenue and that these costs—which include property damage, workers’
compensation, and lawsuit expenses—were down 37 percent from 1992
levels.
11. The Fake
Crisis over Lawsuits: Who’s Paying
to Keep myths Alive?
By Stephanie Mencimer
Over the past two years, the average media consumer would be under the
impression that the nation is awash with lawsuits, greedy trial lawyers
and out of control juries eager to punish corporate America with
million-dollar verdicts. The airwaves and newspapers have been flooded
with hundreds of stories on the legal system, with common references to
the justice system as a lottery for the undeserving and most lawsuits
as "frivolous." And many of the stories carry glaring factual errors. A
few examples:
In November 2002, viewers of "60 Minutes" learned that Mississippi was
the nation's capital of "jackpot justice," where "plaintiffs' lawyers
have found that juries in rural, impoverished places can be mighty
sympathetic when one of their own goes up against a big, rich,
multinational corporation." In the story, Morley Safer interviewed a
local florist who had received a multi-million dollar settlement in a
lawsuit over the diet drug Redux. The unnamed florist alleged that
trial lawyers were bribing jurors to give big awards. "The jury awarded
these people this money because they felt as if they were going to get
a cut off of it," he told Safer.
At the time of the episode, the U.S. Chamber of Commerce was spending
$100,000 on an advertising campaign in Mississippi to push for a cap on
damages in lawsuits against corporations. That fact wasn't included in
the story even as it quoted the chamber's recent "warning" to
businesses to avoid Mississippi because of its legal climate. Several
Mississippi jurors sued CBS for libel over the broadcast. Meanwhile,
the florist, Beau Strittman, retracted his comments about the payoffs,
saying, "I just said it as a joking statement."
In June 2003, publishing mogul Morton Zuckerman wrote a column in U.S.
News and World Report that bemoaned the state of litigious America. He
wrote, "A woman throws a soft drink at her boyfriend at a restaurant,
then slips on the floor she wet and breaks her tailbone. She sues.
Bingo – a jury says the restaurant owes her $100,000. A woman tries to
sneak through a restroom window at a nightclub to avoid paying the
$3.50 cover charge. She falls, knocks out two front teeth, and sues. A
jury awards her $12,000 for dental expenses." Zuckerman had to issue a
correction because both lawsuits were whole-cloth fabrications that had
been circulating in other media outlets for more than a year.
That same month, based on data provided by the American Medical
Association, Time magazine's cover declared that lawsuits were forcing
thousands of doctors to leave the profession. "To doctors…the main
problems are frivolous lawsuits and multimillion-dollar judgments
awarded for tragic but sometimes unavoidable outcomes."
In August 2003, a General Accounting Office study found many of the
media reports and the AMA's claims about doctors quitting the
profession because of the "malpractice crisis" were false. For
instance, in Nevada, one of the AMA's "crisis" states, the GAO found
that of the 34 ob/gyns reported to be closing shop due to malpractice
concerns, eight were still practicing and three stopped practicing due
to reasons other than malpractice. Researchers concluded there was no
evidence that doctors nationally were abandoning their practices at all
much less for reasons related to malpractice suits, which had actually
declined over the past few years.
A December Newsweek cover story warned: "Lawsuit Hell: Doctors.
Teachers. Coaches. Ministers. They all share a common fear: being sued
on the job." The article claimed that the country is suffering from an
"onslaught of litigation" that costs Americans $200 billion a year.
The article failed to mention, among other things, that in 1997,
Congress passed the Volunteer Protection Act, immunizing volunteers
such as Little League coaches from lawsuits for negligence, making the
featured coach's fears largely unfounded. The $200 billion figure cited
as the cost of the legal system comes from a discredited insurance
industry "study" that defines the legal system as everything from
medical bills and lost wages of people forced to miss work because of
injuries to insurance industry salaries, overhead and investments.
Newsweek also failed to disclose that its parent company had a
financial interest in seeing lawsuits restricted. Post-Newsweek
Stations Inc. has been sued a number of times for employment
discrimination and had been hit with an $8.3 million verdict in 1999.
The primary source for the "Lawsuit Hell" story, Phillip Howard, works
for the law firm of Covington & Burling, which represents Newsweek
in those suits.
Academic researchers have done a tremendous amount of empirical study
that contradicts many of the claims of a "lawsuit crisis," but none of
it made it into the stories cited above. For instance, despite the
alarmist headlines, tort lawsuit filings nationally actually have
decreased 9 percent since 1992, according to the National Center for
State Courts. The numbers are even more pronounced when stacked up
against population growth. In Texas, where the population jumped 23
percent between 1990 and 2000, the rate of tort filings fell from 233
to 164 per 100,000 residents, a 30 percent decline. In California, the
rate of filings plummeted 45 percent. As for the "legal lottery"
described in Newsweek, a Bureau of Justice Statistics report found that
in 1996, the "jackpot" really isn't very large. The median punitive
damage award was only $27,000.
Steve Brill first wrote about litigation myths back in 1986, when he
traced several examples of the allegedly "frivolous lawsuits" for the
American Lawyer magazine and found that many of them were simply urban
legends. He says, "I had gone back through the archives of magazine,
and every ten years, Time declared a "litigation crisis. But there was
no crisis." Reporters' perpetuation of the litigation myths has become
one of Brill's pet peeves, even though, as a business owner himself, he
supports legal changes that would protect businesses. "Reporters are
basically lazy," says Brill. "You can always find a ridiculous lawsuit
to make the system look crazy."
The skewed coverage of the legal system represents a victory in a
sustained, 25-year public relations assault on the civil justice system
by a highly organized movement funded by the insurance industry,
tobacco companies and other corporate giants seeking to limit their
liability for wrongdoing. The insurance industry launched the first
concerted PR campaign in the early 1980s, with a series of ads in
Newsweek and Time magazine designed to promote the idea of the lawsuit
crisis. Under the heading "We all pay the price," the ads claimed that
lawsuits were driving ob/gyns out of business, shuttering local school
sports programs, and scaring the clergy out of counseling their flocks.
Then, as now, many of the lawsuit horror stories that turned up in the
major media proved to be fabrications.
Since then, the rhetoric has only gotten more sophisticated as business
groups have funded more than 100 think tanks and "grassroots"
organizations devoted to portraying the legal system as out of control.
Much of their message has been crafted with focus groups and
sophisticated polling so that the results are tailor-made for mass
media consumption. Web sites like the Manhattan Institute's
Overlawyered.com have made it even easier for reporters to find
examples of crazy lawsuits (in fact, several of those featured in the
Newsweek story are highlighted on the site). Tobacco companies alone
spent $15 million in a single year during the industry's campaign to
push the "lawsuit abuse" message while fighting off smokers' lawsuits,
according to documents uncovered through the tobacco litigation and
published by the Center for Justice and Democracy. Since 2002, the U.S.
Chamber of Commerce, through its Institute for Legal Reform, has spent
more than $60 million lobbying for lawsuit restrictions. The highly
coordinated advertising campaigns and subtle media manipulation ensure
that most Americans now take as a given that the legal system needs an
overhaul.
Republican leaders have also recognized that legislation that would
limit the earnings of trial lawyers would not only benefit the chronic
defendants in corporate America. It would also strike a blow against
the Democratic Party, for which trial lawyers represent the
second-biggest group of donors. In 1997, pollster Frank Luntz coached
Republican members of Congress, "Unlike most complex issues, the
problems in our civil justice system come with a ready-made villain:
the lawyer. Few classes of Americans are more reviled by the general
public than attorneys…. It's almost impossible to go too far when it
comes to demonizing lawyers."
The PR campaign has been highly effective. Between 1986 and 1999,
according to the American Tort Reform Association, 30 states enacted
restrictions on punitive damages capping the amount that can be
awarded, and seven states had also capped noneconomic damage awards.
Last year alone, 20 states passed more laws restricting citizens'
ability to hold corporations and other individuals accountable in
court. Despite these fairly radical changes and ample evidence of the
corporate media strategy behind it, reporters continue to perpetuate
many of the myths about the legal system. In doing so, they have helped
interest groups change the focus of public debate.
Rather than run stories about the predatory lending practices of
finance companies that generate class action lawsuits, for instance,
news outlets lead with stories about the size of jury verdicts and the
portion that might go to the plaintiffs' lawyers. Rather than write
about the lack of health insurance that leads injured people to seek
compensation through the courts, reporters focus upon the poor, rural
juries that want to bankrupt honest doctors and businesses. Instead of
focusing on the indifference of McDonald's corporate management to
customer injuries, the press has questioned whether Stella Lybeck was
at fault for her injuries because she was dumb enough to try to drink
hot coffee in a moving vehicle.
Michael McCann, director of the University of Washington's Comparative
Law and Society Studies Center, believes these stories catch on because
the corporate backed "tort reformers" have done a spectacular job of
creating a compelling narrative from lawsuits that fit reporters'
conception of conventional wisdom. He says that because reporters
rarely cover civil trials, they are susceptible to the abstract stories
of irresponsible litigants egged on by greedy lawyers. "That's why
Americans respond to this, because it's a morality tale about the loss
of personal responsibility," McCann says. The coverage is not so
different from the stories in the early 1980s about the welfare queens
that turned out to be largely apocryphal but were part of a concerted
assault on government programs for the poor. The welfare queen has
simply been replaced by the irresponsible plaintiff.
One of the consequences of this kind of news coverage is that it may be
creating a self-fulfilling prophecy. Americans may believe that the
country is too litigious, not because of personal experience, as with
the people featured by Newsweek (none of whom had ever been sued) but
because of the media coverage telling them about the lawsuit crisis.
Ironically, too, some academic researchers suspect that the skewed news
coverage might actually then be making Americans more litigious even as
they support measures making it harder for them to pursue legitimate
cases in court.
In a 1997 article for the University of Wisconsin's Institute for Legal
Studies, Herbert Kritzer and J. Mitchell Pickerill wrote, "The effect
of this rhetoric is to make people think that if anything goes wrong
they can get significant compensation. The result is that lawyers spend
many hours explaining to potential clients that this is simply not
true." Marc Galanter, a law professor at the University of Wisconsin,
put it well when he wrote in a 1998 law-review article tracing
litigation myths, "As in the case of chemical weapons, it is hard for
those who launch media distortions to keep them away from their own
troops."
12. The Myth of
the Frivolous Lawsuit
INTRODUCTION:
One of the catch phrases of tort reformers is “frivolous lawsuits” – a
lawsuit that has no legal basis, or is so petty that the suit isn’t
justified. Often, tort reformers cite high profile cases, such as the
McDonalds coffee case to try and show that the court system is “broken”
and “runaway juries” routinely award ridiculous verdicts in frivolous
cases.
Tort reformers promise that the legislation they propose will put an
end to frivolous lawsuits by putting up various barriers that will
prevent frivolous lawsuits from being filed in the first place.
What tort reformers don’t tell you is that the legal system already has
three safety mechanisms in place to prevent, dismiss, and correct
frivolous lawsuits. The first mechanism, the contingent-fee agreement
prevents frivolous lawsuits from being filed in the first place.
THE CONTINGENT-FEE AGREEMENT:
Have you ever seen or heard an ad for an attorney who promises
something like, “No cost to you unless we collect!”? Nearly every
attorney that brings a lawsuit for a personal injury case does so under
a contingent-fee agreement. While most people understand how the
contingent-fee arrangement works, I’ll explain it in detail for those
who do not.
Let’s say you’ve had an auto accident and decide to hire an attorney.
If you shop around, you’ll find that contingent-fee agreements vary
from attorney to attorney. Generally, they will range from anywhere
from 25% to 50% of the total settlement or judgment you receive. For
simplicity, we’ll say you hire an attorney on a 40% contingent-fee
agreement. If you were to receive $10,000.00, the attorney would get
$4,000.00 in that case as his fee, in addition to being reimbursed for
any expenses he or she incurred in building your case. These expenses
include obvious things like court filing fees and office expenses, but
there some expenses in many cases that the general public doesn’t know
about: expert witness fees.
What is an expert witness fee? Well, in most complicated cases – and
virtually all medical malpractice cases – the plaintiff needs to hire
expert witnesses to help prove his or her case.
In some states, you’re not even allowed to file a medical malpractice
case without first having a report from an expert witness that says, in
essence, the doctor in question committed malpractice.
All cases are gambles, no matter how strong the facts may be. When you
hire an attorney on a contingent-fee basis, he’s gambling with his time
and money. While attorneys are willing to gamble as to when, if, and
how much they’ll get paid, expert witnesses generally are not.
Expert witnesses won’t wait until your case is over to get paid – they
want to be paid up front, and it’s the attorney who has to pay them out
of his or her pocket. As you might surmise, expert witnesses aren’t
cheap: they’re highly qualified professionals who generally have high
hourly fees.
What kind of expert witnesses might be needed in a given case? Let’s
take some real-life examples of experts and what they charge:
Professional Engineers: If you’re suing a manufacturer because you got
hurt by a product that you think was poorly designed, you’ll need a
professional engineer. One engineer in Garland, Texas charges $225.00
per hour, with a 50% premium for deposition and court time. So, if that
engineer spent ten hours reviewing a design, and five hours in court,
that would cost your attorney almost $4,000.00. In a complicated design
case, it’s not uncommon for several engineers to spend fifty or more
hours evaluating the product.
Doctors: If you have a medical malpractice case, or any case where the
extent of your injuries is called into question, you’ll need to hire a
doctor as an expert witness. Doctors, as you might guess, are
expensive. Plan on having your attorney spend around $250.00 per hour,
possibly twice that much for a well-regarded specialist. In a
complicated medical case, you may need three or more doctors, each of
whom may have to spend ten to twenty hours – an out-of-pocket cost to
your lawyer of $10,000.00 or more.
Nurses: You’ll probably need a nurse in any case where you need a
doctor. While they’re not as expensive as doctors, they’ll still be
around $75.00 an hour. Just like doctors, they’ll also probably have to
spend ten to twenty hours on a case - $750.00 or more from your
lawyer’s checking account.
Surprisingly, finding expert witnesses isn’t easy. Often, a lawyer will
have to “shop around” for experts. That means your lawyer will spend
time finding experts with the right qualifications for your case. Then,
he or she would gather all the pertinent materials and send them to an
expert for review.
Sometimes, the expert will review the records and say that they’re not
interested in the case. Or perhaps they’ll review the records and not
find anything helpful to your case. Either way, the expert will still
have to be paid, and it’s your lawyer who will have to pay them. It’s
not uncommon to go through two or three experts, and several thousand
dollars, before the “right” expert is found. Of course, it’s also not
uncommon for a lawyer to think his or her client has a great case, only
to be told by several experts that the case has little or no merit. In
such an instance, that lawyer will be out-of-pocket thousands of
dollars, and the client will owe nothing to the attorney – thanks to
the contingent-fee agreement.
Now, if you were a lawyer with a contingent-fee agreement, would you be
willing to spend thousands of your own dollars and hundreds of hours on
a case you’re not confident you can win? If your answer is “no” to that
question, then you’ve just seen how contingent-fee agreements prevent
frivolous lawsuits from being filed.
While contingent-fee agreements prevent frivolous lawsuits, they also
do something even more important: They provide access to the courts to
everyone. In general, a lawyer’s hourly fee will be anywhere from $100
to $300 an hour. Not many people can afford to pay that kind of money
to an attorney for more than a few hours. If you were to have to pay an
hourly fee to an attorney to bring a complicated injury case to trial,
you might have to spend $50,000 on the attorney. If contingent-fee
agreements were abolished, two things would happen: Only the rich would
be able to file lawsuits, and attorneys would be far more willing to
file a lawsuit that doesn’t have merit; when you’re paid by the hour,
it doesn’t matter if you win or lose.
No case is “easy”, and in general, the more complicated the case, the
harder it is to win. Contingent-fee agreements are what attract lawyers
to the complicated cases. Contingent-fee agreements are what drive
lawyers to take those cases to trial, instead of settling for a
fraction of what the case is really worth. Contingent-fee agreements
are what allow the poorest of the poor to hold corporate juggernauts
accountable for their actions in court of law.
Is it any surprise then that some special interest groups are attacking
the contingent-fee agreement? They argue that it’s not fair for
attorneys to take such a “large percentage” of any recovery of their
clients. Their arguments have worked: Some states have put limits on
the percentage an attorney can take.
Damage caps and attorney-fee caps work together to make the complicated
cases less enticing for lawyers, and the consequence is that those who
traditionally receive large jury verdicts – the catastrophically
injured, or the families of those who are killed – won’t be able to
find attorneys to bring their case to court. The corporate entities
that support tort reform won’t be held accountable when they act
irresponsibly or unethically, and will instead enter into confidential
settlement agreements with those who are harmed by their products.
The irony is that as those corporate entities take away the
individual’s right to a jury trial, they’re doing it under the guise of
protecting the public from “greedy lawyers.”
So, what happens if an inept lawyer decides to file a frivolous
lawsuit? The second safety mechanism, the Summary Judgment, would be
used to dismiss the suit.
THE SUMMARY JUDGMENT:
Tort reformers say that the courts are overwhelmed with “frivolous
lawsuits” – lawsuits that have no legal basis, or are so petty as to
not be worth the time of the court system. They say that to protect the
justice system, we need to make it harder for individuals to file
lawsuits.
But what if instead of putting barriers up that could prevent
legitimate lawsuits from being filed, there was a tool that could
quickly and easily dismiss frivolous lawsuits? What if this tool not
only dismissed frivolous lawsuits, but could also be used to force the
plaintiffs in frivolous lawsuits to pay the attorney fees of the
defendant? This tool not only exists, but has been in use in America
since 1937 ; it’s called the Summary Judgment.
The purpose of the summary judgment is to determine whether there is a
genuine need for trial. When a party files a motion for summary
judgment, they’re telling the court that there is no need for trial
because the facts and law applicable to the case would prevent the
other side from winning.
We’ll use a fictitious car wreck as an example of how a summary
judgment would dispose of a frivolous lawsuit:
Mr. Smith runs a red light and slams into Mr. Jones. Mr. Smith claims
the light was green, but two witnesses say the light was red. Mr. Smith
is given a citation from a police officer for running a red light. Mr.
Smith decides to sue Mr. Jones for mental anguish.
Mr. Jones hires a lawyer. Mr. Jones’ lawyer spends a few hours drafting
a motion for summary judgment. At the end of the motion, Mr. Jones’
lawyer requests he be awarded attorney’s fees from Mr. Smith because
the lawsuit is frivolous.
The lawyer for Mr. Jones files his motion for summary judgment, and
includes with it pictures of the accident scene, affidavits from the
witnesses, an affidavit from the police officer, an affidavit from Mr.
Jones, and a copy of the police report. All of the affidavits and the
police report say that Mr. Smith ran a red light.
In such a case, the judge would most likely grant the summary judgment,
and Mr. Smith’s lawsuit would be dismissed. The judge could also decide
to order Mr. Smith to pay for Mr. Jones’ attorney’s fees. In the end,
Mr. Jones wouldn’t be out any money, and Mr. Smith would have had his
day in court.
The requirements for summary judgment vary from state to state, but in
general, you need to show the court two things:
1: That the facts clearly support your side. In Texas, for example, you
have to show that “reasonable and fair minded people” cannot possibly
come to different conclusions about what the evidence shows. If
reasonable and fair minded people could come to different conclusions
about the facts of the case, then summary judgment shouldn’t be
granted.
2: That the law is clearly on your side. A common use of the summary
judgment is to dispose of lawsuits where the statute of limitations has
passed. Many states have a four-year statute of limitations for breach
of contract. So, if you bought a car in 1995 and tried to sue the
dealer for breach of contract in 2000, you wouldn’t legally be able to
win – the statute of limitations would bar you from recovery – and the
judge would grant the car dealer’s motion for summary judgment. In
medical malpractice lawsuits, there is a two-year statute of
limitations.
Summary judgments have disposed of frivolous lawsuits for decades. They
allow a defendant in a frivolous lawsuit to get out of the case quickly
and without the expense of a full-fledged trial. Often, the defendants
are even awarded their attorney’s fees for preparation of the motion
for summary judgment.
The bottom line is that because of the summary judgment, very few
“frivolous lawsuits” ever make it to trial. It could even be argued
that any case that makes it past summary judgment can’t be a frivolous
lawsuit because a judge – not a “runaway jury” – decided that the case
had enough merit to present to a jury.
Tort reformers want to make it hard for you to file a lawsuit, harder
for you to win a lawsuit, and impossible for you to collect a
meaningful amount of money in a case involving serious or permanent
injury. To accomplish these goals, they claim that frivolous lawsuits
and runaway juries are destroying the justice system. However, tort
reformers don’t talk about how summary judgments have been effectively
used for over 100 years to dispose of untold thousands of lawsuits.
The next time someone tries to persuade you that we need more barriers
to filing lawsuits, ask them why they don’t think the summary judgment
is getting the job done.
Let’s assume that a frivolous lawsuit makes it past summary judgment
and a “runaway jury” awards more money then they should. Several
judicial remedies exist to correct these verdicts.
DIRECTED VERDICTS:
Most people think that a jury can make whatever decision they want.
This isn’t the case at all. A judge can issue a directed verdict, which
tells the jury that they must make a certain decision. Usually, a
directed verdict is used when something comes out at trial that
prevents the other side from winning as a matter of law. For example,
it could come out that a key event happened so long ago that the
statute of limitations prevents the plaintiff from winning. In such a
case, there would most likely be a directed verdict for the defendant.
Less often, the evidence in a case is so strong that the judge feels
that there can be only one verdict, and he or she would order the jury
to return that verdict. One example would be a case where someone
caught the auto accident in question on videotape, and the tape clearly
shows that one of the parties to the lawsuit ran a red light, and is
therefore at fault. In such a case, the judge may direct the jury to
find in favour of the person who did not run the red light.
Directed verdicts are more common in criminal cases than in civil
cases, because the summary judgment would typically be used to dispose
of a civil case before a jury trial. However, directed verdicts can and
do dispose of civil lawsuits without merit.
JUDGMENT NOT WITHSTANDING THE VERDICT (JNOV):
Everyone is familiar with the concept of appealing a decision; if you
lose your case, you can generally appeal it to a higher court. However,
not everyone is familiar with a Judgment Not Withstanding the Verdict
(JNOV). JNOV is an acronym for Judgment non obstante veredicto, which
is Latin for “notwithstanding the verdict”.
A losing party in a lawsuit can often file a motion with the court
requesting a JNOV. A JNOV is one of the ways that a judge can reduce
the dollar amount of a verdict. Some states require that an attorney
file a motion for a JNOV, while other states allow a judge to issue a
JNOV sua sponte, which is Latin for “of its own accord.”
A JNOV can set aside an entire verdict, or just parts of a verdict.
Here’s a good example of how a JNOV could correct an improper jury
verdict:
In many states, if a jury finds that the conduct of a defendant in a
lawsuit was “knowing” and/or “intentional”, the court must double or
triple the amount of a jury verdict. Let’s assume that in a medical
malpractice case, a doctor made an honest mistake. Maybe he transposed
the numbers in a prescription, and the plaintiff ended up taking too
much medication. But, for whatever reason, the jury found that this
honest mistake was intentional, and awarded $100,000 dollars. Because
the doctor’s conduct was found by the jury to be intentional, the judge
would have to award the plaintiff $300,000 dollars. However, if the
evidence was very convincing that this was an honest mistake, a JNOV
could eliminate the finding of the jury that the doctor’s conduct was
intentional, and the plaintiff would be awarded only the $100,000
dollar jury verdict.
Directed verdicts and JNOV’s are two mechanisms that judges have
available to prevent juries from awarding damages when they should not,
and to reduce jury verdicts that are clearly excessive. Of course, tort
reformers don’t tell the public about these tools; they want to be able
to prevent these large jury verdicts from ever occurring, and to
prevent the bad press that accompanies the verdicts.
SETTLING AFTER A DECISION:
In many cases, such as the famed McDonald’s coffee case, the plaintiffs
in a lawsuit will settle the case for less than they were awarded. In
the McDonalds case, Stella Liebeck was awarded $2.7 million dollars,
and the judge reduced the award to $480,000. Stella settled with
McDonalds for a confidential amount less than $480,000.
Plaintiffs and plaintiff’s attorneys are often motivated to settle
because a settlement means they won’t have to go through a lengthy and
potentially risky appeals process. This is where big companies have the
advantage over individual plaintiffs: A major corporation can afford to
spend time and money to drag a case out for years. Settlements are
extremely common, and are yet another way that very large jury verdicts
are reduced.
APPEALING THE DECISION:
The majority of cases where a jury awards millions of dollars are
appealed, and many times, those verdicts are reduced or overturned on
appeal. For example, in the Igen case that was discussed earlier, the
appellate court reduced the $505 million dollar verdict down to $19
million dollars– a $486 million dollar reduction.
While some verdicts are reduced, others are overturned entirely by
appellate courts. It’s important to realize that the judges in
appellate courts aren’t overly emotional jurors, but are seasoned
judges who place far more weight upon the legal issues in a case then
on the emotional issues. As such, incredibly large jury verdicts are
rarely upheld by the many appellate courts in our country.
Despite what tort reformers claim, large jury verdicts are the
exception, and not the rule. When juries do return large verdicts, the
plaintiffs usually settle for less than verdict or see the verdict
reduced or overturned by an appellate court.
Our justice system is a system of checks and balances. Before someone
can even bring a case, they have to convince an attorney that their
case is worth gambling time and money on. The contingent-fee agreement
weeds out countless cases that have no merit. Once an attorney accepts
the case, a judge will most likely scrutinize the facts and law
applicable to the case through a summary judgment. If the judge decides
that the case has merit, then the case will be presented to an
impartial jury of twelve men and women. If those twelve men and women
are convinced that the plaintiff has proven his or her case, the jury
will then rule in favor of the plaintiff, and award compensation for
the plaintiff’s injuries. The judge has an opportunity to modify,
reduce, or set aside the jury’s verdict. Then, the defendant has an
opportunity to appeal his case to higher courts, and even more
experienced judges can then modify, reduce, or set aside a jury’s
verdict.
The burden of proof in any case is always on the plaintiff; the deck is
stacked in favor of the defendants in both civil and criminal cases.
Multimillion-dollar jury verdicts rarely survive the appeals process.
Yet tort reformers continue to argue that we need more barriers to file
lawsuits, and statutory limitations on how much money can be awarded in
the lawsuits we’re able to file. The reason is that the big
corporations who push for tort reform don’t want the bad press and
public scrutiny that accompanies trials where people are severely
injured or killed. Instead, they prefer to enter into confidential
settlements that the public never knows about.
Tort reform isn’t about fixing a “broken” justice system; it’s about
protecting the public image and bottom lines of the biggest and most
powerful companies in the world. Tort reform isn’t about protecting
doctors from high insurance rates; it’s about protecting their insurers
from having to pay large judgments. Tort reform isn’t about keeping
“greedy lawyers” from filing frivolous lawsuits; it’s about keeping
those who are severely injured out of the court system and away from
the public eye.
October 30th 2003 by Permalink
13. The
vexatious litigant before tribunals,
freedom of information applications
Of great concern is the planned use of vexatious litigant
usage to
enable not only the courts but other public bodies to deny access to
those they largely judge subjectively as troublesome.
Local
Authorities: Bournemouth Council
Bournemouth Council’s: ‘Access to Information Policy’
VEXATIOUS & REPEAT REQUESTS
Repeat requests
The Council is not obliged to comply with repeat requests for
information, under either the DPA or the FOIA. In reaching a
decision about whether an application for access should be categorised
as a repeat request the Council will have regard to:-
* the time that has elapsed since
the previous request;
* whether the request is
identical or substantially similar to the
previous request;
* whether any relevant, new
information has been generated since the
previous request.
Vexatious requests
The Council is not obliged to comply with vexatious requests under
either the DPA or the FOIA. The Council will apply the term
‘vexatious’ fairly and consistently.
In determining whether a request should be refused because it is
vexatious the Council will consider all the circumstances of the
request, including:-
* the history of requests
submitted by an applicant;
* repeat requests submitted by an
applicant;
* whether an applicant is
habitually and persistently submitting
requests where there appears to be no reasonable grounds for them to do
so and where there is a strong likelihood that such requests are being
made to intentionally cause harassment, divert resources and to disrupt
the proper workings of the Council.
The Council will be aware that the term ‘vexatious’ should be applied
to the activities of the applicant and not to their nature or attitude.
The applicant must be provided with a written notice from the Council
stating that a request is deemed to be vexatious.
Updated: 03 Feb 2005 Bournemouth Council
National Health Boards
Conwy & Denbighshire NHS
Trust
Below is an extract from their vexatious complaint procedure:
3. Criteria for Identifying a “Vexatious Complaint”:
The complainant may display the following behaviour:-
• Has, without provocation, been
personally abusive or aggressive
towards staff dealing with the complaint (IR1’s completed)
• Is unwilling to accept
documented evidence of treatment given as
being factual, e.g. prescription charts, operation notes, nursing
records and so on
• Insists he/she has not had an
adequate response to their complaints
• Deluges the organisation and/or
several members of staff with letters
of complaint or phone calls
• Focuses on a trivial matter out
of all proportion to its significance
and will not accept an open apology on this point
• Constantly raises new concerns
which did not appear in the original
complaint, which keeps the correspondence going
• Attention seeking behaviour,
involving Press, MP’s, Secretary of
State for Health, etc.
• May not be the patient, but be
acting on their behalf
14. Attorney
General v Akena Adoko - 20th May
2004
CO/6396/2003
Neutral Citation Number: [2004] EWHC 1409 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Thursday, 20th May 2004
B E F O R E:
MR JUSTICE COLLINS
MR JUSTICE PITCHERS
- - - - - - -
HER MAJESTY'S ATTORNEY GENERAL
(CLAIMANT)
-v-
AKENA ADOKO
(DEFENDANT)
- - - - - - -
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR S KOVATS (instructed by the Treasury Solicitor) appeared on behalf
of the CLAIMANT
The DEFENDANT did not attend and was not represented
- - - - - - -
J U D G M E N T
(As Approved by the Court)
- - - - - - -
Crown copyright ©
1. MR JUSTICE COLLINS: There is before the court an application by Her
Majesty's Attorney General for a Civil Proceedings Order, pursuant to
section 42 of the Supreme Court Act 1981, against Akena Adoko. That
order is requested on the basis that Mr Adoko is a vexatious litigant,
having habitually and persistently, and without any reasonable ground,
instituted vexatious civil proceedings and made vexatious applications
in civil proceedings.
2. Mr Adoko has not attended before us. We have made enquiries of the
List Office and are entirely satisfied that a notice was sent on 7th
April of this year to his address; that is to say, 10 Sloane House,
Roland Way, London SW17 2JF. Further, we are told by Mr Kovats that on
11th May there was also sent to that address a copy of his skeleton
argument which itself contained the date of this hearing. Further, the
respondent himself has made an application in these proceedings, that
being that he should be permitted to enter into a consent order, which
he is prepared to do; the order being in the same terms as a Civil
Proceedings Order would itself be in.
3. Mr Adoko has submitted a bundle of documents, including that
application. Filed within that and received by the court on 6th April
2004, is a notice given to him by the court of the date upon which that
application would be heard, and that is today's date. The reason why
that application is noted as being received on 6th April, whereas the
listing letter in the main proceedings is dated 7th April is as
follows. He would have been given an immediate date for the hearing of
his application when he tendered his documents on 6th April. The court,
having given that date, would of course marry it up with the date of
the hearing of the application by the Attorney General. That is to say,
this application. Accordingly, there is no surprise at all that the
formal letter notifying him of the date of these proceedings should
have been sent on 7th April, the day after he received notification of
the date of the hearing of his application.
4. In all those circumstances, in my view, it is apparent that he was
aware of the hearing which was due to take place today and in those
circumstances we are quite satisfied that it is proper for us to have
continued to consider and decide upon the application made by the
Attorney General.
5. Mr Adoko is now 73 years old. He is Ugandan by nationality. He was,
in Uganda, president, or the equivalent of president, of the Law
Society there, and was also holding some important position in the
government. In any event, in 1986 he came to this country and by
October 1989, having become settled in this country, he began
practising law here, initially as a barrister and then working for
solicitors. He had, in fact, been called to the bar and was a member of
the Middle Temple.
6. In January of 1991, he decided that he wished to be admitted as a
solicitor and he made an application to the Law Society to that end. He
was required to sit an examination in professional conduct and
accounts. This he did in 1992, but he did not pass those exams and so
the Law Society decided not to admit him as a solicitor. He took
proceedings in an industrial tribunal against the Law Society,
asserting that the practice of exempting barristers who had practised
for at least eight years in England or Wales from the relevant exams
was to discriminate against such as himself, and that it amounted to
indirect racial discrimination.
7. The Law Society, in those circumstances, decided in December 1995
that it would exempt Mr Adoko from having to sit those exams. However,
that did not produce the result that he desired, because on 17th May
1995 the Law Society made a formal complaint to the Professional
Conduct Committee of the Bar which arose out of Mr Adoko's publication
of information which he had obtained on discovery in his litigation
against the Law Society. It was, or should have been, apparent to any
practising member of the Bar, and indeed to any solicitor, that to
misuse information obtained on discovery in the way that Mr Adoko did
-- which was by publishing names and details of English barristers who
had been exempted from the aforementioned examinations -- was a clear
breach of the requirement of professional conduct on both sides of the
profession.
8. Following that, the Law Society wrote to Mr Adoko saying that it was
deferring the decision whether to admit him as solicitor. On 14th
February 2000 it decided not to admit him, relying on the fact that he
had been found guilty in June 1997, by a disciplinary tribunal of the
Inns of Court, of two charges of professional misconduct, that his
appeal had been dismissed, and indeed he had applied to be voluntarily
disbarred and had so been. Further, in June 1999 he had been made
bankrupt on his own petition and further, he had used information
obtained while working for a firm of solicitors to publish a libellous
attack on an employee of a body that one of his clients had sued. As a
result, he was eventually made subject to an order from the Solicitors
Disciplinary Tribunal that no solicitor was to employ or to remunerate
him.
9. However, he has in more recent years been apparently providing legal
services, pursuing what he has described as a "hobby", and has
instituted numerous actions against former clients and opponents. There
are a total of some 27 actions that have been taken by him over a
period of about 10 years since 1993. Ten have been against the Law
Society -- three of which were against the Office of the Supervision of
Solicitors -- and two have been taken against the Solicitors
Disciplinary Tribunal. He has also issued libel proceedings against
counsel and solicitors who acted for the Law Society, and a further
action against an internet service provider because, following
notification that the contents were libellous, it withdrew an attack
which Mr Adoko had placed on the internet against the solicitor who had
acted for the Law Society in the course of his litigation.
10. Further, he has brought claims against the Lord Chancellor's
Department, alleging judicial corruption. Essentially he has asserted
that the decisions made against him were only made because the judges
who decided against him were corrupt. Perhaps the flavour of the type
of litigation, and the allegations that he has seen fit to make, can be
gleaned from a statement of claim which he served in his action against
the Lord Chancellor. I quote from that statement of claim which is in
claim number HQ 0100883 of February 2001. He says:
"In 1994 the claimant obtained judgment against the Law Society from
the employment tribunal. The court ordered that the Law Society had
refused to exempt the claimant to practice law as a solicitor on racial
grounds. As a result of that case, the Law Society resorted to the
worst form of racial victimisation of the claimant for having exposed
its racial discrimination policy in practice. One such discrimination
was to pretend that it had stopped exemption of English barristers to
become solicitors . . . In order to prevent the claimant from being
admitted as a solicitor, and to prevent him from practising law as a
solicitor, the Law Society --
(1) resorted to persuading judges orally and by secret letters, and by
other means, to give illegal and fraudulent judgments in order to
prevent the claimant from ever being admitted as a solicitor and from
ever practising law as a solicitor;
(2) the Law Society's main weapon of persuasion was the black colour of
the claimant. They induced eight judges to believe that because the
claimant was black, the judges could act fraudulently towards him and
get away with it;
(3) ultimately the officials of the defendant were induced to believe
that they too could act fraudulently towards the claimant and get away
with it.
The eight judges ranged from the former Lord Chief Justice, Lord
Bingham, through four High Court judges, one circuit judge, and two
chairmen of industrial tribunals.
11. Those sorts of wild allegations have been a feature of the
activities of the respondent. He has also brought six further libel
actions against former clients or opponents, and the most recent claim
has been against a health insurance company for not making clear the
terms of its policy. The distinction to be drawn in relation to that
latest action is that it does not, on the face of it, follow the
pattern of the former ones which either stem from his dispute with the
Law Society or out of an attempt to take proceedings against former
clients, or those with whom he had involved himself in litigation. It
is, I think, unnecessary to go into any further detail beyond saying
this. The initial claim against the Law Society was successful to this
extent, that it was accepted that there was indirect discrimination.
However, Mr Adoko, notwithstanding that that had been conceded,
insisted on continuing the proceedings, alleging direct discrimination
and an intention to discriminate. Not surprisingly, that was dismissed.
12. His further ploys were to take defamation proceedings against those
who had appeared against him, or who had made any observations in the
course of the proceedings which suggested that he had in any way
behaved in a fashion which merited any adverse action being taken
against him. He was also involved, because of his activities in
supporting litigation by others, in proceedings with a Dr Pal. In due
course he turned against Dr Pal and those proceedings were initially
struck out by Master Eyre. On appeal to Hooper J, those strike outs
were set aside because the learned judge was persuaded that the basis
of the strike out was wrong, so there was an interlocutory success to
that extent. However, Hooper J then went on to consider the matter on a
more general basis and whether the claim should have been struck out.
13. In a judgment dated 19th January 2004, he decided that the actions,
two of them in relation to Dr Pal and the third in relation to another
doctor, should be struck out. What he said in paragraph 84 of that
judgment was this:
"I further strike out both actions in so far as Dr Pal is concerned
because the statement of case is an abuse of the court's process. Mr
Adoko accepts that prior to 13th December, the date of the first of the
two alleged defamatory statements, he had already sent emails
describing Dr Pal as like Hitler, Amin and Mussolini rolled into one.
Dr Pal described the emails, copied to another person and others,
understandably, as harassing and so troublesome that she reported if
the matter to the police. Thereafter he has vilified Dr Pal . . . in
other respects. He is now clear that his aim in bringing these
proceedings is 'to enable a British jury to decide whether she is a
murderess and perjurer, as I hold and maintain she is, or not.' To
attack a person in the way that Dr Adoko has attacked Dr Pal and then
used the courts to seek redress for what, by comparison, is a much less
serious allegation than those being made by Dr Adoko against Dr Pal is,
in my view, such an abuse of the process of the court on the facts of
this case that the actions must be struck out. The fact that Dr Pal has
used language about Dr Adoko which may well also be intemperate does
not alter my conclusions."
Indeed, although, as I have said, there were from time to time some
apparent interlocutory successes, all the actions, in due course, have
been struck out or have been discontinued on the court indicating that
there was no conceivable merit in any of them.
14. In all those circumstances, I have no doubt whatever that the
respondent has acted in a way which is covered by section 42 of the
Supreme Court Act 1981. We have to look at the entirety of the matter
and look at what he has done, and I bear in mind, of course, that the
court has to be satisfied that he has habitually and persistently,
without any reasonable ground, instituted vexatious civil proceedings.
There is no doubt that there has been the appropriate degree of
persistence in what he has done. The only twist -- and it is
appropriate to regard it as such in this case -- is that in December
2003 the Treasury Solicitor, acting on behalf of the Attorney General,
wrote to the respondent stating as follows:
"I confirm that this matter may be resolved if you are prepared to
offer the court an undertaking in the following terms:
'I, Dr Akena Adoko, undertake not to issue civil proceedings in any
court without the leave of the High Court. I further undertake not to
continue any civil proceedings instituted by me in any court without
the leave of the High Court. No application other than an application
for leave to the High Court shall, without the leave of the High Court,
be made by me in any civil proceedings instituted by me in any court.'"
That, as I have said earlier, reflects the order that the court would
make if satisfied that it was right to make an order under section 42.
15. The respondent agreed to enter into such an undertaking, and indeed
it is his application, as I have already said, that a consent order in
those terms should be made by the court. However, when the court was
informed of the undertaking, the view was taken by Master Venne, on
consideration, that an undertaking was not an appropriate way to
proceed in these proceedings. I am bound to say that I take the view
that, as a general approach, Master Venne is correct. The effect of an
undertaking is more onerous, so far as the respondent is concerned,
than an order under section 42, because the mere attempt to institute
proceedings without seeking leave would constitute a breach of the
undertaking and so amount to a contempt of court, which would carry the
penalties appropriate to such a contempt. An order under section 42
does not contain a similar penal provision.
16. Further, those who have been declared to be vexatious litigants,
and in respect of whom orders have been made under section 42, are
listed. That list is available for any court to inspect, and thus to
have knowledge of who are vexatious litigants so that any such person
who attempts to institute proceedings can immediately be identified.
There is no such list available to deal with those who give
undertakings such as are suggested in this case. I appreciate that it
would be possible for the court to order that a person who gives an
undertaking should be placed on such a list, but that is not what has
been sought by way of consent. Nor have the effects of giving an
undertaking rather than an order being made been drawn to the
respondent's attention. Further, the giving of an undertaking in no way
constitutes an admission that he has been a vexatious litigant. It is,
or may be, important that the court makes a positive finding to that
effect, as the court is doing in this case, so that it is known that he
is indeed someone who is properly to be categorised, as a result of a
court decision, as a vexatious litigant.
17. I am, for my part, not prepared to go as far as to say that an
undertaking in lieu of a finding under section 42 could never be
appropriate, but it seems to me that the circumstances in which such an
undertaking would be appropriate must be very carefully considered. It
is likely to be inappropriate in many, if not most, cases of this
nature. In all those circumstances, I am entirely satisfied that the
Attorney General's claim is made out and that the court should make the
order in the terms that he seeks.
18. MR JUSTICE PITCHERS: I agree both as to the right order in this
case and also in relation to the more general comments that my Lord has
made in relation to undertakings in cases such as this.
19. MR KOVATS: I am grateful, my Lords.
20. MR JUSTICE COLLINS: Thank you.
15. Vexatious
Litigants - England - 25th
July 2003
Practice — Vexatious litigant — Inherent jurisdiction of the court —
Remedies available to prevent abuse of process by vexatious litigants
Bhamjee
v Forsdick and Others [2003] EWCA Civ 1113
CA (Lord Phillips of Worth Matravers MR, Brooke and Dyson LJJ):
25 July 2003
The Court of Appeal gave guidance on the range of remedies available to
the courts under their inherent jurisdiction to protect their processes
from abuse by litigants who persistently made applications or
instituted procedures which were totally devoid of merit.
The Court of Appeal made an extended restraint order for two years
against Ismail Abdullah Bhamjee restraining him from making further
applications or taking steps in proceedings against five barristers
without permission. On 14 May 2003 a two-judge court [2003] EWCA Civ
799 had refused Mr Bhamjee permission to appeal in three actions and
adjourned the matter to a three-judge court for further consideration.
LORD PHILLIPS OF WORTH MATRAVERS MR, giving the judgment of the court,
summarised the court's guidance. (1) If a court at any level considered
that an application or a claim or statement of case was totally devoid
of merit it should say so, and that reason should appear on the face of
the order. (2) It was desirable that a record should be kept of all
such orders both at the court centre at which they were made and on a
national basis. (3) Procedural judges should be alert to identify cases
appropriate for them to consider striking a claim out under CPR 3.3 as
being totally devoid of merit before the proceedings were served on the
other party. (4) A judge at any level of court should consider whether
to make a civil restraint order if a litigant made a number of
vexatious applications in a single set of proceedings all dismissed as
totally devoid of merit. Such an order restrained the litigant from
making any further applications in those proceedings without first
obtaining the court's permission. Any application issued without
permission stood dismissed without the need for the other party to
respond to it.(5) If a litigant exhibited persistently vexatious
behaviour a judge of the High Court, Court of Appeal or designated
civil judge (or his deputy) in the county court should consider making
an extended civil restraint order against him. That order, made for a
period not exceeding two years, restrained the litigant from
instituting proceedings in which it was made without the permission of
a judge identified in the order. Any application for permission should
be made and dealt with on paper. (6) If an extended civil restraint
order did not provided the necessary curb on a litigant's vexatious
conduct, a High Court judge or designated civil judge should consider
whether to make a general a civil restraint order against him. Such an
order had the same effect as an extended civil restraint order except
that it covered all proceedings and all applications in the High Court
or identified county court, for up to two years. (7) If a litigant
subject to an extended civil restraint order or a general civil
restraint order continued to make applications totally devoid of merit,
a High Court or designated civil judge should consider whether to make
any subsequent refusals of permission final. Any subsequent refusal
would not be susceptible of appeal unless the judge who refused
permission granted permission to appeal. (8) The other parties to the
litigation could apply for any of those restraint orders, and on such
application the court should make an order proportionate to the
mischief complained of.
Appearances: The claimant in person. Andrew R Nicol (Barlow Lyde &
Gilbert) for the defendants. Paul Gott (Treasury Solicitor) as advocate
to the court. Adam Tolley (Treasury Solicitor) for the Attorney General
with a watching brief.
Reported by: Susan Denny, barrister
16. Vexatious
Litigant Case - Scotland - James
Bell
Lord Advocate
v James Bell 23 March 2001
EXTRA DIVISION, INNER HOUSE,
COURT OF SESSION
Lord Coulsfield
Lord Marnoch
Lord Cowie
OPINION OF THE COURT
delivered by LORD COULSFIELD
in
PETITION
of
HER MAJESTY'S ADVOCATE
Petitioner;
for
an Order under the Vexatious Actions (Scotland) Act 1898
and
ANSWERS
for
JAMES BELL
Respondent:
_______
Act: Sheldon; Legal Secretariat to Lord Advocate (Petitioner)
Alt: Party (Respondent)
23 March 2001
[1] By this petition, the petitioner sought to have the respondent
declared a vexatious litigant in terms of section 1 of the Vexatious
Actions (Scotland) Act 1898. On 23 March 2001 we decided to grant the
order sought by the petitioner.
[2] The events out of which this petition arises are not, perhaps, in
themselves unduly complicated but they have given rise to a lengthy and
confusing set of legal proceedings. In the course of those proceedings,
the relevant circumstances have been examined and explained in a number
of opinions of the court. It is not necessary to repeat all the detail
set out in those opinions. For the purposes of the present petition it
is, in our view, sufficient to set out the main features of the history
and the principal issues which have been involved.
[3] The respondent was formerly a trustee on the estate of Mrs. Janet
McLanachan. The sole beneficiary of the estate was Robert Fulton, who
was incapax and an inmate of Ailsa Hospital. In about 1992, questions
arose as to the trust estate and, in due course, an action of count
reckoning and payment was raised in the name of Robert Fulton. The
procedure which was followed in that action included the appointment of
a curator ad litem to Robert Fulton, Mr. W.A. McMillan, a curator bonis
and an interim judicial factor, Mr. Thomas Steel Bryson. The
proceedings in the action eventually came to an end as a result of the
death of the incapax Robert Fulton. By an interlocutor of 19 March
1996, the sheriff sought to dispose of the action and, inter alia,
found the curator ad litem entitled to expenses out of the trust fund
and refused a motion by the respondent for an order against the
Scottish Legal Aid Board for payment of expenses to him. The respondent
reclaimed against that interlocutor and the reclaiming motion was
refused. (Fulton v. Bell and Edmund 22 November 1996). The opinion of
the court delivered by Lord McCluskey fully narrates the circumstances
which had given rise to the proceedings so far. The curator was found
entitled to his expenses in the proceedings.
[4] The interim judicial factor eventually applied for exoneration and
discharge. The respondent opposed that application, on the ground,
inter alia, that the judicial factor had allowed the curator ad litem
credit for expenses incurred by him. On 11 March 1998, the Lord
Ordinary granted exoneration and discharge. The respondent reclaimed
and the reclaiming motion was refused (Bell v. Bryson 11 March 1998).
The opinion of the court delivered by the Lord Justice Clerk deals
fully with the questions discussed in that reclaiming motion. The
expenses of the proceedings were awarded against the respondent who, in
due course, objected to the auditor's taxation of the account. That
matter was dealt with in an opinion of Lord MacLean dated 12 January
1999. There was a reclaiming motion against Lord MacLean's interlocutor
but that was refused on 6 May 1999. It is to be observed that in these
proceedings the respondent raised substantial questions in regard to
the judicial factor's management including, in particular, the issue as
to the curator ad litem's expenses and these issues were considered and
decided by the court.
[5] Subsequently, the curator ad litem prepared an account of the
expenses awarded to him. The account was taxed. The respondent did not
pay the taxed amount and proceedings were taken for his sequestration,
which was granted on 28 January 1998. Mr. Douglas Jackson was appointed
permanent trustee in the sequestration. The respondent petitioned for
recall of the sequestration but that was refused by the Lord Ordinary
(Bell v. McMillan and Jackson 29 October 1998). Again the Lord
Ordinary, Lord Osborne, fully narrates the circumstances considered and
determined in his opinion of that date. One of the issues raised by the
respondent in these proceedings concerned the status of a joint bank
account in the name of himself and his wife. The respondent argued that
that account was, in some sense, a trust fund or subject to a trust and
therefore did not fall under sequestration. That argument was
considered and rejected. Again, therefore, in these proceedings
substantive issues raised by the respondent were considered and
decided. It may be observed, that the same issue in regard to the bank
account was raised in a note presented by the respondent in the
sequestration process seeking the exclusion of the funds from the
sequestration. There was a proof in the Sheriff Court and the note was
refused, following the proof, on 8 April 1999. The respondent marked an
appeal against that interlocutor but the appeal was late and the court
refused leave to the respondent to proceed with a late appeal.
[6] Subsequently, there have been the following further court
proceedings:
(1) James Bell v. Scottish Legal Aid Board (Kilmarnock Sheriff Court
A1509/97).
This was an action against the Scottish Legal Aid Board seeking payment
of £20,000 in respect of time spent in litigation. On the motion
of the defenders, the sheriff ordered the respondent to find caution
and gave as part of his reason for doing so that there were no
averments which would support the crave of the writ. The respondent was
ordered to find caution in the sum of £2,000 but refused to do so
and consequently decree of absolvitor was granted on 11 February 1998.
(2) James Bell v. William McMillan (Ayr Sheriff Court A467/1999). This
was an
action against the curator ad litem seeking damages of £50,000.
The sheriff ordered the respondent to find caution but the action was
subsequently abandoned and decree of absolvitor was granted on 9
September 1999.
(3) James Bell v. Douglas Jackson (Glasgow Sheriff Court A3329/99/F).
This
action sought damages of £50,000 against the permanent trustee in
the sequestration. It was dismissed by the sheriff as irrelevant by an
interlocutor dated 5 November 1999. The respondent appealed to this
court but on 31 May 2000 his appeal was rejected. The reasons are set
out in the opinion of the court delivered by Lord Prosser on that date.
The question of the status of the joint account funds again figured
largely in the claim made by the respondent but the opinion of the
court clearly held that his averments were wholly irrelevant.
(4) James Bell v. Douglas B. Jackson (Glasgow Sheriff Court A35544/00).
This
is an action raised on 27 June 2000 seeking damages of £211,350
in respect of defamation, litigation expenses and loss of title to the
respondent's heritable property. The latter element arises because by
that time the permanent trustee, the defender in the action, had lodged
a notice of title in respect of heritage owned by the respondent. We
were informed at the hearing that this action had been dismissed, with
an award of expenses against the respondent.
(5) Two further actions which have been raised can conveniently be
dealt with
together. James Bell v. William McAlister McMillan and Thomas Steel
Bryson was an action in Ayr Sheriff Court (A873/99) raised on 2
November 1999 seeking damages of £50,000. An order for caution
was made on 8 June 2000 and, caution not having been found, the
defenders were assoilzied by interlocutor dated 13 July 2000. That
interlocutor was then appealed. James Bell v. William McMillan and
Douglas Brown Jackson was an action raised in Kilmarnock Sheriff Court
(A2/2000) seeking damages of £150,000 against the defenders
jointly and severally. The action was dismissed by the sheriff but
appealed to the sheriff principal and eventually to the Court of
Session. Both these actions eventually came before an Extra Division of
the court which, on 22 December 2000, refused the respondent's
reclaiming motions in both cases. The opinion of Lord Cameron of that
date sets out the arguments and again the respondents' averments were
held to be irrelevant and incapable of supporting the craves made.
(6) James Bell v. James A.K. Warnock. This is an action raised by the
respondent
in August 2000. The defender in the action is a partner in the legal
firm which represented Mr. Jackson, the permanent trustee. It seeks
damages of £190,000 in respect of the defender's actions,
particularly in regard to the notice of title recorded on behalf of the
trustee. That action was dismissed for a technical reason, namely
failure to return the writ within the prescribed period, but there is
an appeal live against that decision.
(7) James Bell v. The Register of Sasines. This is an action raised by
the
respondent in Edinburgh Sheriff Court (A1303/00) seeking payment of the
sum of £100,000 as damages in respect of "loss of title to the
pursuer's heritable property and the non-pecuniary loss of a good
name". The ground of action appears to be that the Keeper of the
Register acted wrongfully in recording the notice of title in favour of
the permanent trustee, previously referred to.
(8) James Bell v. The Accountant in Bankruptcy. In November 2000 the
respondent raised an action in Kilmarnock Sheriff Court against the
Accountant in Bankruptcy craving damages in the sum of £190,000
in respect, principally, of alleged responsibility on the part of the
accountant for the actions of the permanent trustee.
(9) James Bell v. George Waddell. In January 2001, the respondent
raised an
action against George Waddell, sheriff clerk at Kilmarnock, apparently
in respect of alleged vicarious responsibility for the actions of the
sheriffs at Kilmarnock in the course of the proceedings to date. This
action was referred by the sheriff clerk to one of the sheriffs who
refused to grant warrant for citation.
[7] While the pleadings in the actions set out in the four
subparagraphs immediately above are diffuse and not easy to understand,
it does appear that the issues which the respondent seeks to raise are
essentially the same as those which have previously been raised and
decided, that is to say, the conduct of the action of count reckoning
and payment, the award of expenses to the curator ad litem, the
proceedings in the sequestration, the status of the joint bank account
and the action of the permanent trustee in recording a notice of title.
[8] Counsel for the petitioner submitted that looking at the whole
history of these actions it appeared that the respondent was acting as
a vexatious litigant, that the issues which he sought to raise had been
repeatedly decided against him and that his actions could be regarded
as a kind of war of attrition, in the course of which he sought, with
some ingenuity, to find new targets including Mr. Warnock, Mr. Waddell
and the Accountant in Bankruptcy. Counsel referred to Lord Advocate v.
Cooney 1984 S.L.T. 434 and submitted that the test set out by Lord
Wheatley in that case had been met.
[9] The respondent appeared in person and made a number of submissions.
Generally, he submitted that it was wrong that access to the court
should be denied and that his access to the court had been wrongly and
improperly impeded in the past by the device of making orders for
caution. The course of the proceedings had led him to distrust the
entire judicial system and in particular the Sheriff Court at
Kilmarnock and at least a number of judges in the Outer House.
Dismissal of his actions on relevancy without enquiry into the merits
amounted to discrimination against a party litigant. The right of
access to the court was not to be cut down except by clear words. There
were reasonable grounds for the actions in all these cases. There was a
cause, a reasonable cause, for all the proceedings, which stemmed from
the McLanachan estate and the action of count reckoning and payment.
That action had been wholly disproved because accounts were produced
and it was shown that all the revenue had been properly accounted for.
Nevertheless the action had not been dismissed. This was the cause of
everything that had happened since. It would be wrong to place the
respondent at the mercy of a Lord Ordinary to grant him leave to
proceed with justified claims.
[10] More particularly, the respondent made four submissions. Firstly
he submitted that the interlocutor allowing service in the present
petition granted on 2 August 2000 had restricted the induciae to seven
days, instead of the normal 21. That was inherently wrong and a flaw
which permeated the whole procedure, since the only judge who could
alter a flawed interlocutor was the judge who pronounced it and that
had not been done. Secondly, he submitted that the Lord Advocate was a
biased petitioner; he had ignored letters of complaint from the
respondent while apparently acting on complaints made to him by the
parties against whom the respondent sought to proceed. Thirdly, he
submitted that at the date of the petitions the Lord Advocate had been
acting as prosecutor in the trial taking place at Lockerbie and a
substantial part of his salary had been contributed by someone other
than the Scottish Executive. The Lord Advocate should have delegated
his authority to someone such as the Solicitor General but had not done
so. Fourthly he submitted that the provisions of the 1894 Act were
incompatible with Article 6 of the Convention attached to the Human
Rights Act. The court should therefore make a declaration of
incompatibility, since the right of access to a court of justice was
impeded. The same could be said of the requirement of caution.
[11] In our view, the respondent's submissions, both general and
particular, are without merit. As regards the general submissions, we
only find it necessary to comment on the submission that there has been
discrimination against a party litigant. It is an essential feature of
Scottish court procedure that a party must set out a relevant case in
his pleadings before being allowed enquiry. It may, no doubt, sometimes
be difficult for a party litigant to comply with that requirement, but
while some latitude in regard to matters of relevancy can be, and
regularly is, extended to party litigants, it is nonetheless necessary
that they should comply with the ordinary procedures of the court in
essential matters. It may be added that the respondent has never sought
legal assistance. Having seen the opinions delivered previously in the
various cases mentioned above, we can only say that we would endorse
the findings, in the opinions to which reference has been made, that
the respondent's pleadings have been devoid of any statement of a
comprehensible ground of action. The same can, in our opinion, be said
of the pleadings in the actions in which opinions have not been
delivered. Indeed, it can be seen that, in the actions raised more
recently, the pleadings have become increasingly wild, as has the
respondent's choice of defenders against whom to raise actions.
[12] As regards the more particular submissions, we were informed that
a limitation of the induciae had been sought in the hope that some step
might be taken to prevent the raising of further actions before the
petition was served. In fact, no interim order had been sought. It is
within the power of the court to restrict the induciae, as was done in
this case. The respondent has had, as matters have turned out, ample
opportunity to reply to the averments in the petition and there is no
ground for suggesting any prejudice. This point is therefore without
merit. The respondent's comments on the position of the Lord Advocate
wholly misconceive the status of the Lord Advocate and the powers under
which his office is exercised. The Lord Advocate is not required to
attend personally to every matter which falls within the scope of his
duties. 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 same can be said of his complaint in regard
to the making of orders for caution. That issue was also considered by
the court in the opinion dated 22 December 2000, to which reference has
been made, when it was held that the requirement of caution was not
inconsistent with Article 6. With that opinion we agree.
17. OUTER
HOUSE, COURT OF SESSION
OPINION OF LORD BONOMY
in the cause
MARTIN FROST AND ANOTHER,
Pursuers;
against
UNITY TRUST BANK plc,
Defenders:
________________
Pursuers: Party
Defenders: Nicoll; Franks MacAdam Brown
21 May 1999
Both pursuers submitted Notes of Objection to each of two reports of
the taxation of accounts of expenses in this action. At the hearing
before me the first named pursuer sought to be allowed to represent his
wife, the second named pursuer, with her authority, in her absence.
Having heard the first named pursuer and counsel for the defenders, who
had no objection, I agreed to that course of action.
The Notes of Objection Nos. 41 and 43 relate to an account of expenses
following upon an interlocutor of 20 October 1995. In that interlocutor
the first named pursuer was found liable to both the second named
pursuer and the defenders in certain expenses. The first named pursuer,
however, advanced no argument on behalf of the second named pursuer in
respect of this account for obvious reasons.
The first named pursuer also advanced no argument in relation to
paragraph 1 of his own Notes of Objection. He did, however,
maintain his objections in respect of both parts of paragraph 2 of
his Note. I deal with these in turn.
2(i) The first named pursuer gave me a broad history of other
litigation between the parties in which the work charged for in this
account had been done, charged for and paid for. Without giving me
chapter and verse he referred to three actions for recovery of
possession of heritable property and one action for payment of debt,
all in the sheriff court. He explained that the present action was
originally a counterclaim in the sheriff court action for payment,
which was transferred to this court. However, it subsequently emerged
in his submission that the present action was raised before the sheriff
court action was transferred to the Court of Session. At no stage in
his submission to me did he provide any specification of the work which
he maintained was common to a number of actions, including this one,
and should have been apportioned. His submissions were simply a general
challenge of the determination by the Auditor, on a matter which it is
plainly for the Auditor to determine.
The first named pursuer made a further submission that money had been
removed from a bank account of his by the defenders, and that that
removal followed on the issue of a fee note in respect of the work
covered by this item. He sought, and I allowed him, the opportunity to
locate the bank account entry and the fee note. In the course of the
first day he assured me he had copies of the items at home. Neither was
produced on the second day of the hearing. It is plain the Auditor was
addressed on this matter, since he has minuted, in terms identical to
my experience above, that the first named pursuer produced no material
to show that the work had already been paid for.
2(ii) This objection is quite simply that counsel's fee is excessive.
That is a matter for the Auditor to determine. He has given his reasons
for approving the charge. There is no basis for me to interfere.
I accordingly repel the objections in the Notes of Objection Nos. 41
and 43.
The other much larger account was the subject of three objections, the
third being sub-divided into eight paragraphs. These are set out in
No. 42 for the first named pursuer and No. 44 for the second
named pursuer in identical terms. The first named pursuer made
submissions on behalf of both himself and the second named pursuer in
relation to the eight items under paragraph 3. He made no submissions
in support of paragraphs 1 and 2.
3(i) This objection is identical to objection 2(i) above. The
submission was identical. My determination is identical. There is no
basis for me to interfere with the charges.
3(ii) The first named pursuer contended that the charges provided for
at the relevant time in paragraph 2 of Chapter 1 of the Table of
Fees for copying are a penalty rather than a proper reflection of the
expense involved. The charges approved by the Auditor are in keeping
with that paragraph of the Table of Fees. However, the first named
pursuer maintained that he had not been allowed to see the documents
copied on grounds of confidentiality. It was thus submitted that he had
not been in a position to satisfy himself that the copying done was
reasonably necessary, nor that the "sheets" were as defined by Rule of
Court 42.16(2), viz. "a page of 250 or more words or numbers". There is
no reference in this objection to the refusal of the Auditor to allow
him to see the documents. Counsel for the defenders advised me that no
such request or refusal had occurred. Since the matter was not the
subject of objection in the Note, I did not consider it appropriate to
enquire further into it, except to ask of counsel whether all the
sheets copied fell within the above definition, and to be assured that
they did. In fairness to the first named pursuer he did acknowledge at
the outset of his submission on this point that he was actually
challenging the paragraph of the Table itself rather than the Auditor's
determination. He made no submission on the strength of which it could
be said that the Auditor was not entitled to apply the paragraph as he
did.
3(iii) This objection was a challenge to the Auditor's approval of a
charge which the pursuers had claimed was excessive and in respect of
which the Auditor had sought, and been given, information to explain
it. The approval of the charge in these circumstances is a matter for
the Auditor and not for me.
3(iv) The submissions made by the first named pursuer in relation to
this objection applied also to (v), (vii) and (viii). He, firstly,
submitted that these items should be struck out or significantly
modified, because he was not, as at 21 February 1998 and thereafter,
entitled to proceed with litigation without the authority of the court,
there being then in force an interim order under Part VIII of the
Insolvency Act 1986 following upon a voluntary arrangement that he had
made with his creditors, and to which the defenders were party. In
spite of my repeatedly asking him to do so, the first named pursuer
failed to draw my attention to any statutory provision which required
prior authority of the court for him to proceed with an action, as
distinct from provisions preventing action against him in the absence
of such authority. In addition he failed to provide any material
indicating whether an interim order was in force on 21 February and
thereafter, having claimed that counsel for the defenders had misled
the court about the situation on 21 February. He maintained that
at the third continued diet of taxation the Auditor had struck out a
number of items following on 21 February on the basis that they were
not justified in these circumstances. The first named pursuer had been
unable to attend the fourth diet and understood that, on written
representations and subsequent oral submissions made then, the Auditor
had restored these items. The account of expenses before me does not
bear to have been altered in the way suggested. I accordingly could
find no substance in this submission in support of
objections 3(iv), (v), (vii) and (viii).
The first named pursuer also submitted that, because it was clear as at
21 February that neither he nor the second named pursuer intended
to proceed with the diet of preliminary proof fixed for 28 February,
these items 3(iv), (v), (vii) and (viii) were unnecessary or, in some
cases, should be modified to reflect the much more limited nature of
the work required. On Friday, 25 February their Lordships of the First
Division considered his motion for leave to appeal to the House of
Lords against their interlocutor of 21 February refusing his
reclaiming motion against the Lord Ordinary's refusal of his motion to
sist the action. Leave to appeal having been refused, the Lord
President made arrangements that a Minute of Abandonment which the
first named pursuer had enrolled should be considered that afternoon.
The proof was due to take place on Tuesday 28 February. No Lord
Ordinary was readily available. An arrangement was made that the motion
would be considered on 28 February and the defenders conceded that
the first named pursuer would not be prejudiced in respect of expenses
as a result thereof. In fact the hearing took up the whole day on 28th,
having started late. The Lord Ordinary considered the matter overnight
and pronounced his determination on the following morning. The
defenders opposed the Minute of Abandonment, which was regarded, in the
course of the hearing on 28 February, as presented on behalf of both
pursuers. As a result of the pursuers being allowed to abandon the
action, the proof did not proceed. Counsel for the defenders advised me
that the defenders considered the pursuers were endeavouring to cause
disruption to the action, by the first named pursuer enrolling to
abandon, and the second named pursuer taking no formal steps to abandon
and thus being nominally in the position of proceeding to proof.
There was a dispute between the first named pursuer and counsel for the
defenders about whether it was made plain in the course of the week
ending 25 February that the second named pursuer was also
intending to abandon. Be that as it may, it is plain that the decision
on the Minute of Abandonment would not have been made until at least
the Monday, if not the Tuesday, even if the hearing had commenced on
Friday. The first named pursuer maintained that on these facts it was
not necessary for a noting junior counsel to be instructed for a
consultation on the Friday nor the proof the following week, and that
counsels' fees for the abortive proof should have been considerably
modified because no work was necessary after 21 February, or at
the latest 25 February. In addition substantial parts of the work of
the solicitors was unnecessary.
The Auditor considered all that was said in support of this submission.
Subject to what I have to say about the Auditor's reference to the
pursuers as "party litigants", I have been unable to identify any error
of law in the Auditor's approach. Nor can I identify any material which
he failed to take account of or any irrelevant material that he did
take into account. In these circumstances it was for the Auditor to
assess whether the charges made were appropriate. I can find no basis
for intervention on my part in relation to the charges to which these
objections relate on the basis of these submissions. There was before
the Lord Ordinary a live issue as to whether the pursuers should be
allowed to abandon on the basis that their action would be dismissed.
The motion was opposed. In the event that the Lord Ordinary had decided
otherwise than to allow abandonment on that basis, the proof might yet
have proceeded. Had there been little or no substance in the defenders'
opposition, then one might have expected an award of expenses against
the defenders in respect of their opposition to the Minute. As it is,
the Lord Ordinary's interlocutor includes the expenses of the hearing
on the Minute.
The first named pursuer submitted one further argument in relation to
items 3(vi) and (viii). There is some confusion about whether the
first named pursuer submitted an objection No. 3(viii) caused, I
think, by the omission in one copy of the Note of Objection of the
correct third page and the inclusion of a rogue page from a different
document. It is plain, however, from another copy and from the Note of
Objection for the second named pursuer and indeed from the way matters
proceeded, that objection 3(viii) was part of the first named
pursuer's Note of Objection No. 42 of process. So both pursuers
challenged the charges referred to in objection 3(vi) and 3(viii)
as excessive being charges which included an element to reflect the
fact that the pursuers were party litigants. In his original Minutes
Nos. 47 and 48 of process, which are in identical terms responding
to the Notes of Objection for the pursuers, the Auditor says this:
"(vi) The Auditor considered Counsel's fee to be reasonable for his
preparation for, and his attendance at the Summar Roll Hearing, having
regard to the amount of preparation necessary to deal with all
reasonably possible points which might be raised either by the Party
Litigant, or the Court.
(viii) The Auditor considered that the fee allowed was reasonable for
the very substantial preparation already carried out by Counsel in
preparation for a forthcoming lengthy and complex proof involving a
Party Litigant, and Counsel's subsequent Court attendance on two days.
The Auditor was provided by Counsel with a note of his work for a very
complex proof set down for six days, preparation for which, involving
the consideration of a very substantial volume of material and claim,
could not have reasonably been left until a point close to the diet.
The Auditor was informed that it was not until the first morning of the
Proof Hearing that it emerged that the second pursuer also was moving
to abandon. The procedure raised an issue of novelty in relation to the
relevant Rule of Court and involved additional research and
preparation."
It is clear the Auditor considered that the fact that this action was
conducted by party litigants was a material fact to be taken into
account in determining counsel's fee. On the other hand, it was not
clear to me that the Auditor had in mind the actual work necessitated
by the actual approach taken by the particular party litigants involved
in this case rather than the very fact that the opponents in the
litigation liable in expenses were party litigants, in other words was
considering that to be a material factor whatever the circumstances of
the case. In that state of doubt I remitted the account of expenses to
the Auditor for further consideration of the charges referred to in
these objections and to report on the significance in his report of the
fact that the pursuers were party litigants in relation to those
matters. The Auditor reported in supplementary reports 51
and 52 of process as follows:
"... the Auditor took account of his experience that the Court almost
invariably allows a greater latitude to party litigants in presenting
their case as to technicalities of procedure, excusing failures to
observe Rules of Court, and in specification of matters in pleadings,
and its desire to avoid expensive continuations, which indulgence a
legally represented party could not expect.
The Auditor, therefore, considered that there was a greater than usual
responsibility on Counsel to be fully acquainted with every aspect of
the cause so as to be able to deal with any matters which might arise
and knowing that the Court would look to Counsel being able to assist
it fully and objectively thereon. This is a fact for the Auditor to
take into account in fixing Counsel's fees."
That response made it clear that the Auditor's approach was a general
one which he would take in any action involving a party litigant.
In responding to the contention of the first named pursuer that such an
approach was erroneous, Mr Nicol submitted that the Auditor's approach
was quite correct, since the effect of the involvement of a party
litigant tended to be that the case became less "focused" than it would
if pled by counsel. I note, however, that, with the exception of a
minor amendment allowed at the Summar Roll Hearing, the pursuers'
pleadings are those of counsel. Mr Nicol submitted that, if a party
produces a "woolly case", then he should be liable for the "padding"
that produces in the work required of his opponent. With that I agree.
On the other hand, the Auditor has not reported that what he took into
account were particular difficulties in this case created by the
conduct of the litigation by the pursuers as party litigants. The
Auditor does record that he was provided by counsel with a note of his
work for a very complex proof set down for six days. It is perfectly
understandable that the Auditor should require such a note where a
substantial fee is sought for work in connection with procedure which
does not take place. If the charges made are, in the opinion of the
Auditor, not unreasonable, then they should be allowed. That is
obviously the correct approach in any litigation whether conducted by
counsel, solicitor or party. In that connection it would be
appropriate, in my opinion, for the Auditor to take account of the fact
that in the particular case counsel did require to do particular work
because of the way in which the case was actually conducted by the
party litigant. Reference to the party litigant's conduct of the case
in the Auditor's report in that connection would be understandable.
However, that is not the context in which the Auditor had regard to the
fact that party litigants were involved in this case. In relation to
objection 3(vi) to the charge made for the Summar Roll hearing the
Auditor reported that he had regard to the amount of preparation
necessary to deal with all reasonably possible points which might be
raised either by the party litigant "or the Court". In relation to
objection 3(viii) his reference to "party litigants" is general. It is
easy to see that there will be cases in which a very broadly stated
ground of appeal, which is to be argued by a party litigant, or a party
litigant's vague pleadings, might leave an opponent in the position
that he has to undertake extensive preparation in view of his
apprehension that the Court might wish to be addressed on a wide range
of identifiable points which he can explain in the note he gives to the
Auditor. In this case, however, the pursuers had lodged very detailed
grounds of appeal. If these gave rise to the need for very extensive
preparation by opposing counsel and the Auditor considered the work
done was reasonable, then the charges should be approved. Indeed, in
that situation, it is difficult to see what the relevance of the fact
that the proceedings are being conducted by a party litigant is to the
reasonableness of the charges. In addition, the pleadings were
counsel's. The Auditor does not indicate that a particular problem
created by the fact that the action was conducted by party litigants
was drawn to his attention in relation to either objection 3(vi) or
objection 3(viii). The mere fact that the litigants were party
litigants was irrelevant to the issue before the Auditor and he ought
to have left that fact out of account. He has plainly taken it into
account as partial justification for the charges made. It is, in my
opinion, the job of counsel to be prepared whenever they appear before
any court to deal with any issue that may arise in the case, whether
the opponent is represented by the ablest of counsel or the vaguest of
party litigants. In each situation the remuneration allowed by the
Auditor should be for the work reasonably done.
Since it is on this point alone that I consider that there is merit in
the pursuers' objection, and since this point is confined to one aspect
of the Auditor's assessment of the particular charges made, and since I
do not know the extent to which the figures approved reflect their
relevant consideration taken into account by the Auditor, what I shall
do is sustain these objections to a limited extent and make an order
requiring the Auditor to give effect to that decision.
On the completion of his submissions in relation to the Notes of
Objection, the first named pursuer invited me to consider two other
matters.
In the first place he invited me to distinguish between his liability
and that of the second named pursuer. He explained that their
involvement in the pursuit of the action was not identical, and
contended that that should be reflected in the taxed account. I note
that the Lord Ordinary made an order finding both pursuers jointly and
severally liable in expenses in respect of the large account. It is for
the work done by and for the defenders that they have that joint and
several liability. It is not for the Auditor, or indeed for me at this
stage, to try to distinguish the respective responsibilities of the
pursuers for the part each played in putting the defenders to expense.
The second ancillary matter raised was a request that I should restrict
the period, in respect of which the pursuers were bound to meet the
expenses of the defenders in full, to the period after the defenders
became fully party to the voluntary arrangement with the creditors of
the first named pursuer. He was unable to articulate any reason why I
should do this. He drew my attention to no statutory provision that
this should be so. If there is any statutory provision that restricts
his obligation to pay expenses, then no doubt that will take effect as
a matter of law. My concern is simply whether the Auditor has erred in
any respect in his approach to the approval of the accounts. I do not
have power to order the restriction sought.
I raised one matter ex proprio motu. The Notes of Objection
Nos. 42 and 44 relate to an account of expenses following on an
interlocutor of 5 March 1997. That interlocutor was pronounced by
Lord Osborne in the Outer House. The account includes entries in
respect of the procedure on a reclaiming motion which called before the
First Division on 14, 18, 19 and 21 February 1997 and was followed
on 28 February 1997 by a motion to the Division for leave to
appeal to the House of Lords. At that stage, and indeed later, the
Inner House made no finding in relation to the expenses of procedure
there. Since I had doubts about whether it is competent for the Lord
Ordinary to make an award of expenses in respect of procedure in the
Inner House, I decided, with the agreement of parties, to report to the
Division the question whether a finding of liability in expenses should
be made in respect of the procedure there, for the avoidance of doubt.
While I considered that it might be possible for the Lord Ordinary to
pronounce an interlocutor in terms which oblige a pursuer seeking
decree of dismissal on abandonment to make payment of the expenses of
procedure in the Inner House in respect of which no finding had been
made as a condition of obtaining dismissal, it did seem to me that the
interlocutor of Lord Osborne was not to that effect. Be that as it may,
following upon my report to the Inner House, their Lordships concluded
that the pursuers had decided to abandon the action and to pay "full
judicial expenses"; and that in doing so the pursuers clearly believed
that that expression included all the expenses, including those
incurred in the Inner House. The court considered that it was evident
from their behaviour in not raising the matter before the Auditor or
before me that that was the case. They considered that I was not faced
with an invitation to do something which was fundamentally null and
void, but was being asked to give effect to what was, for all practical
purposes, an agreement by all the parties as to what items fell
properly to be included in the account of expenses. Since the issue of
competence was not raised in the Note of Objection, I was not required
to deal with it. The case was accordingly remitted to me to deal with
the Notes of Objection on the basis that no party is submitting that
the expression "full judicial expenses" is not apt to include the Inner
House expenses. There is accordingly no issue before me in relation to
whether expenses in the Inner House are properly included in the
account.
I shall accordingly repel the objections contained in Notes of
Objection Nos. 42 and 44, paragraphs 1, 2 and 3(i),
(ii), (iii), (iv) (v) and (vii). I shall sustain the objections
3(vi) and (viii) in so far as they relate to the Auditor having taken
into account general considerations flowing from the fact that the
pursuers were party litigants, and I shall ordain the Auditor to amend
his report No. 39 to give effect to that decision by reconsidering
the items to which these two objections relate, leaving out of account
the general considerations flowing from the fact that the pursuers were
party litigants previously taken into account by him.
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