Vexatious litigation

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

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

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

Contents 1 Law by jurisdiction 1.1 California, United States 2 Controversy 2.1 Victoria, Australia 2.2 Western Australia 2.3 United Kingdom 2.4 Canada 2.4.1 Quebec 2.5 New Zealand 3 Notable vexatious litigants 4 See also 5 References

[edit] Law by jurisdiction

[edit] California, United States

Under California law^[1] a vexatious litigant is someone who does any of the following, most of which require that the litigant be proceeding in propria persona, i.e., representing himself:

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

Appeals of an existing action do not count as “final determinations”. Appeals and writs that are related to a current action do not count as “final determinations” or additional determinations, because until all avenues of appeal have been exhausted the determinations cannot be construed as “final” (Childs v. Painewebber, Inc. (1994), 29 Cal.App.4th 982 ...a judgment is final for all purposes when all avenues for direct review have been exhausted.” (First Western Development Co. v. Superior Court, (1989) 212 Cal.App.3d 860, 864, 261 Cal.Rptr. 116.) Interlocutory decisions before a judgment cannot be considered “final determinations” (Holcomb v. U.S. Bank Nat. Ass'n, (2005), 129 Cal.App.4th 1494, 29 Cal.Rptr.3d 578). Docket lists show nothing about qualifying merit of interim motions (Id.)

To meet the unspecified criteria for "repeated" motions or litigations, the number must be much more than two, and the rule based on caselaw seems to be around 12. "While there is no bright line rule as to what constitutes “repeatedly,” most cases affirming the vexatious litigant designation involve situations where litigants have filed dozens of motions either during the pendency of an action or relating to the same judgment." (Bravo v. Ismaj, (2002) 99 Cal.App.4th 211, 120 Cal.Rptr.2d 879)

Repeated motions must be "so devoid of merit and be so frivolous that they can be described as a flagrant abuse of the system, have no reasonable probability of success, lack reasonable or probable cause or excuse, and are clearly meant to abuse the processes of the courts and to harass the adverse party than other litigants." (Morton v. Wagner, (2007) 156 Cal.App.4th 963, 67 Cal.Rptr.3d 818. Evidence that a litigant is a frequent plaintiff or defendant alone is insufficient to support a vexatious litigant designation. (Roston v. Edwards, (1982) 127 Cal.App.3d at 847, 179 Cal.Rptr. 830.) The moving party, in addition to demonstrating that the plaintiff is vexatious, must make an affirmative showing based on evidence that the case has little chance of prevailing on the merits. If the plaintiff is so determined, a bond may be required, and if the bond requirement is not met within a specified time period, a judgment of dismissal is ordered. A finding of vexatiousness is not an appealable order, but a dismissal for failure to post a bond requirement based on a judgment of vexatiousness is appealable.

Habeas petitions do not count towards vexatious litigant determination, (In re Bittaker, (1997) 55 Cal.App.4th 1004, 64 Cal.Rptr.2d 679.) Vexatiousness in Probate Actions are governed by a different standard (Cal. Prob. Code s. 1611)

[edit] Controversy

[edit] Victoria, Australia

As of 2006^[update], only 13 people — including convicted mass-murderer Julian Knight — had been declared vexatious litigants since the law was introduced in 1930. ^[2]

[edit] Western Australia

Legislation has existed since 1930, but is under review as of limited use ^[3]

[edit] United Kingdom

UK courts have the means of escalating the sanctions against a litigant who makes applications to the court that are "totally without merit"^[4]:

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

Further applications totally without merit can lead to withdrawal of the right of appeal. Harassment of the court and court officials can lead to a penal prohibition notice, prohibiting the litigant from contacting or approaching the court without permission.^[5]

HM Courts Service maintains a list of vexatious litigants.^[6]

[edit] Canada

Under the Constitution Act of 1867, section 92(14)^[7], each province is vested with the power to enact and apply laws relating to the administration of justice within its' own territory.

In Canada, Section 40 of the Federal Court Act^[8] and in Ontario Section 140 of the Courts of Justice Act,^[9] restrict the ability to introduce or continue proceedings for those who have instituted vexatious proceedings or conducted proceedings in a vexatious manner.

[edit] Quebec

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

Under section 46 of the Code of Civil Procedure^[10], all judicial courts and judges in Quebec are vested with "...all the powers necessary for the exercise of their jurisdiction". Furthermore, they may:

"…at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law."^[11]

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

Cases illustrating the application of section 46 are numerous. Among them, there are: Nguiagain v. Commission de la fonction publique^[12], in which the judge rejected the plaintiff's motion for a mandamus to enjoin his union to revise the grievance that he had filed on the grounds that the motion was groundless and abusive; De Niverville c. Descôteaux^[13], where an injunction was rendered declaring the respondent, disbarred lawyer Descôteaux, as a vexatious litigant due to the multiple unfounded and frivolous actions that he had sought against the plaintiff De Niverville; and in Fabrikant v. Corbin^[14], a motion to declare the plaintiff Valery Fabrikant as a vexatious litigant was granted to the defendant, Dr. Corbin. It must be noted that in all of the above cited cases, a litigant was only declared vexatious following a proceeding instated by the opposite party.

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

As per section 90 of the Rules of Practice of the Superior Court of Québec in Civil Matters^[15], such litigants are now indexed in a registry kept by the Chief Justice in the judiciary district of Montreal. Lawyer and author Claude Duchesnay has reported in May 2003 that a document on the Quebec attorney general’s intranet contains the name of 58 persons who must obtain permission prior to instating proceedings before the courts^[16].

[edit] New Zealand

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

[edit] Notable vexatious litigants

• The Church of Scientology: "Plaintiffs (Scientologists) have abused the federal court system by using it, inter alia, to destroy their opponents, rather than to resolve an actual dispute over trademark law or any other legal matter. This constitutes 'extraordinary, malicious, wanton and oppressive conduct.' As such, this case qualifies as an 'exceptional case' and fees should be awarded pursuant to the Lanham Act... It is abundantly clear that plaintiffs sought to harass the individual defendants and destroy the church defendants through massive over-litigation and other highly questionable litigation tactics. The Special Master has never seen a more glaring example of bad faith litigation than this." (RTC v. Robin Scott, U. S. District Court, Central District of California, No. 85-711-JMI (Bx) 85-7197-JMI (Bx), January 20, 1993, Memorandum of Decision) ^[17]
• Julian Knight, convicted of the Hoddle Street massacre in Melbourne, Australia. ^[18]
• Gavin Menzies, author of 1421: The Year China Discovered America.^[19]
• David James Lindsey, a Melbourne man so declared after repeatedly suing doctors, insurance firms and companies such as Carlton & United Breweries for smoking-related damages. On February 21, 2006, the Supreme Court of Appeal gave him leave to sue Philip Morris, demonstrating that a vexatious litigant is not completely blocked from launching further court action.^[20]
• Leo Stoller, American "intellectual property entrepreneur".^{[citation needed]}
• Valery Fabrikant, a former Concordia University professor serving a life sentence for the murders of four colleagues in 1992 ^[21]
• Suresh Deman, academic and former teaching fellow at Pittsburgh University ^[22]
• Dorothy Squires, singer and former wife of actor Roger Moore.
• Andy Martin (Anthony Martin-Trigona), a law school graduate who was never admitted to the bar and perennial candidate who has been sanctioned by several state and federal courts in the United States.
• Francis 'Coyote' Shivers, former husband of Bebe Buell and Pauley Perrette, deemed a Vexacious Litigant on August 27, 2008 by The Superior Court of Los Angeles County during a long ongoing trial between himself and Perrette.

[edit] See also

• Abuse of process
• Barratry
• Malicious prosecution
• Strategic lawsuit against public participation (also known as "SLAPP")
• Scientology and the legal system
• Pro se legal representation in the United States
• Restraining order abuse

[edit] References