Vexatious? I'll see you in court
'Compulsive litigators' are a thorn in the side of the judiciary. But how can the law prevent their actions without also curbing their rights?
By Robert Verkaik
Tuesday, 15 February 2000
Vexatious? I'll see you in court!
Dorothy Squires, the singer and former wife of Roger Moore, was probably the most famous personality with a litigation problem. In the last years of her life she fought 20 legal suits, variously for libel, assault and piracy of autobiography. The mounting legal fees drove her to bankruptcy and eviction from her 17-room mansion at Bray, in Berkshire.
Dorothy Squires, the singer and former wife of Roger Moore, was probably the most famous personality with a litigation problem. In the last years of her life she fought 20 legal suits, variously for libel, assault and piracy of autobiography. The mounting legal fees drove her to bankruptcy and eviction from her 17-room mansion at Bray, in Berkshire.
She died in 1997 but not before the courts had ruled her to be "vexatious" - the legal profession's way of informing someone that the court has lost its patience with their futile attempts at litigation. A vexatious litigant is barred from bringing legal proceedings without the express permission of a judge.
In the last 10 years the courts have made 60 similar orders against serial litigators. That compares with 41 in the previous decade and just six in the Seventies. Between 1880, when the first orders were issued, and 1960, the courts made only 33 vexatious orders in total.
"Compulsive litigation disorder" is rapidly becoming a national problem. For every one of the vexatious litigation orders (issued under section 42 of the Supreme Court Act), there are hundreds of other ordinary court-users who have become obsessed with their cases. They spend their waking hours planning court-room strategy, sifting through heaps of legal documents or scraping together the money to issue new claims forms. The mind-set is always the same: "just one more writ and I'll have won my case". The bankruptcy lists are littered with the names of vexatious litigants who have never even come close to judgment in their favour.
Litigation should carry a government health warning, because in the wrong hands it can be as addictive as a class A drug. Once exposed to the adrenaline rush of a courtroom appearance, some litigants will go on to develop a litigation habit, and cannot exist without their regular fix of the law. This makes a section 42 order an even harsher treatment because it forces the litigant to go cold turkey.
Unsurprisingly, serial litigators will often wriggle and squirm to escape the guillotine of a section 42 order. Many have even changed their names so that they can continue appearing in court.
The courts rightly fear vexatious litigants because most have not only lost all fear and respect for the courts and their officials but also refuse to be represented by a lawyer. The legal profession describes these people as "sectionable" in order to create the impression that the subject of the order is someone who is not in full command of their mental faculties. Certainly some vexatious litigants have become so wrapped up in their case they imagine conspiracies in every courtroom whisper. While others have developed an obsessional neurosis with their own litigation. In these instances, section 42 orders do stop madmen and women from undermining the administration of justice.
But there are others, whose mental health is not in question, who have legitimate grievances which the courts have failed to recognise. For some it is the courts and judges themselves who are the subject of the litigation. The question in these cases is: are the courts in the best position to say what is vexatious and what is a genuine attempt to expose the flaws in our justice system?
On 4 February Geoffrey Scriven, a 63-year-old Manchester businessman, became the most recent litigant to be branded "vexatious". Mr Scriven has fought a nine-year battle to prove that British justice is corrupt. By persevering with his quest he has risked being imprisoned for contempt of court.
The case attracted national newspaper coverage as Mr Scriven became the first person since 1931 to be prosecuted for breaching an undertaking under the ancient law of "scandalising the court". Mr Scriven, who is also president of the Litigants in Person Society, has been a constant thorn in the side of the judiciary, variously describing judges as being members of a "judicial Mafia", "corrupt" and guilty of "high treason".
He began his campaign to expose judicial wrongdoing after his own bitter experience of the courts during his divorce in 1992 when his wife left him to live with a solicitor.
In 1997 the Conservative Attorney General at the time, Sir Nicholas Lyell, resurrected the archaic law of "scandalising the court" to stop Mr Scriven undermining public confidence in the judges.
Although at a subsequent court appearance in the same year Mr Scriven agreed not to make further allegations, he now claims he did so under duress. Since then he has published further material maligning the Lord Chancellor, Lord Irvine of Lairg, and repeating his allegations of judicial corruption. He has even made an application to have Lord Irvine brought to the Old Bailey to answer his claims of corruption. Last year, the new Labour Attorney General, Lord Williams of Mostyn, reviewed the case and decided to prosecute Mr Scriven for breaching his promise not to scandalise the court. A substantive charge of scandalising the court was dropped. This month he escaped a prison sentence when two judges sitting in the High Court in London decided to deny him his right to use the courts by making him a vexatious litigant.
A fraud investigator, Malcolm Glynn, has been keeping a watching brief on the courts and their use of section 42 orders for over 10 years. He claims that in the last 20 years the problem has got worse. He says the statistics show that the courts have become much more willing to slap a "gagging order" on a complainant rather than deal with the complaint. "The number of people," says Mr Glynn, "crying foul is increasing with two barristers and two solicitors amongst the victims of these orders." He asks: "Are the courts and this Act (section 42 of the Supreme Court Act 1981) being used to silence or gag victims of miscarriages of justice?"
Frank Folley, is a former Queen's Lifeguard who claims he was wrongly imprisoned because of a malicious prosecution against him. While in prison he lost his business and his home was demolished. In a bid to clear his name and undo the injustice, he says that 26 legal proceedings were issued, the majority of which he claims to have won.
He has sued Sandwell Council for the demolition of his home, Sandwell and Black Country Newspapers for libel and Yorkshire Electricity and Midland Electricity over a business dispute. "In total £500,000 has been won in or out of court. But it has cost us over £2m in the last 12 years," says Mr Folley.
Today he is fighting to rid himself of the title "vexatious litigant" he received in 1997. Mr Folley and his brother have been awarded £67,000 legal aid and granted leave to appeal against that decision. For the first time, a vexatious litigant will be able to go the appeal court, properly represented, to test the legality of a section 42 order.
Last week the Folleys and their two barristers hoped to have the order overturned, but the case was adjourned in chaos as it became clear a number of vital documents had been mislaid. The case is due to return to court in six weeks.
There is now growing legal opinion that a vexatious litigation order is a breach of an individual's human rights and it must be only a matter of time before the question is tested by the European Court of Human Rights. To stop a citizen from using the courts without first asking the court's permission is perhaps the kind of legal catch that Franz Kafka used to write about.
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