For you, the law is over

Published on Sunday 14 June 2009 19:41

IT IS THE foundation of civil societies governed by the rule of law that access to litigation to resolve a dispute ought to be available to all.

Wisdom and experience repeatedly demonstrate that litigation shouldn't be the first option for someone with a grievance, no matter how legitimate, and often isn't the best way to settle a row. The law is rarely a precision instrument.

Nevertheless, there is a short list on the Scottish Courts website of individuals who have been formally classed as 'vexatious litigants'. The half dozen named individuals aren't completely forbidden from ever going to court again should they suffer some misfortune in the future, but they will have to go to court first to get permission to raise any sort of action. The door is closed but not locked.

Another name was added to the list last week. Following a judgment from Lord Reed, supported by Lord Hardie and Lord Marnoch, Andrew McNamara from East Kilbride was advised that for him, the law is over.

The judgment appears to draw a line under an ever-widening ring of disputes and actions dating back to 1996 and a dispute between Mr McNamara's company, Arakin Ltd, and solicitors Tods Murray. An action for payment of fees by Tods Murray generated an argument about the fees themselves and associated VAT charges and generated a counter-claim for damages. Over the years that followed, further actions were raised against solicitors Levy and McRae, who represented Mr McNamara in that first dispute and expanded to involve the then First Minister, Henry McLeish, a further legal firm, Alexander Stone & Co and Sheriff Peebles.

Mr McNamara was joined in the actions against Levy & McRae, the First Minister and Sheriff Peebles by a Kelso-based businessman, Martin Frost, who had acquired an interest in the proceedings as an assignee of other interested parties.

The basis of the action against Henry McLeish was that as First Minister he was vicariously liable for wrongs committed by sheriffs. All the actions against Levy & McRae, the First Minister and Sheriff Peebles were abandoned or fell.

The proceedings originally brought by Tods Murray did continue, in the course of which Messrs Frost and McNamara alleged that the pursuers and their solicitors, Simpson & Marwick, had deliberately tampered with the court process in order to deceive the court and defraud Arakin. The allegations included the assertions that a document had been removed from the process as "a deliberate act to hide the glaring inconsistencies and additions", and that another production had been "tampered with to make (another production] look authentic."

The court set down a proof to test these allegations. There were 15 days of evidence and in her judgment in October 2003, the judge ruled none of the allegations had been substantiated.

She also noted evidence given by Mr Frost, in the course of being examined by Mr McNamara, to the effect that the evidence at the proof had assisted them in their cases, and would assist in future proceedings against the solicitors acting on behalf of the pursuers. She surmised they were using one proof to fish for material that they could use in another.

Mr Frost and Mr McNamara broke up their association. In 2007 an action was raised against Mr Frost by The Lord Advocate under the Vexatious Actions (Scotland) Act 1898 and he was formally found to be a vexatious litigant.

In the 110 years since the act was passed, it has rarely been invoked, so there were few Scottish cases cited in Lord Reed's judgment and most of them have been in the last decade. The act is short listing only two matters to be addressed: first, that the person against whom the order is sought has "instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings"; secondly, that he has acted in the foregoing manner "habitually and persistently."

The judgment spells out that there has to be a balance between the right of a citizen to raise an action in court and rights of citizens or organisations to not have resources squandered and prospects compromised unnecessarily.

Does the recent flurry of cases indicate a clearing of the undergrowth for judges to be more active in taking a view on cases before them?

Advocate Simon Di Rollo doesn't think this case fits into the current enthusiasm for active case management by judges. He is, though aware of a greater judicial sensitivity to 'abuse of process'.

"That's a phrase being used more often in Scotland and England. I think all parts of the civil justice process are increasingly aware that costs are an impediment to fairness and justice. We hear more often of 'wasted costs' orders being imposed in England and this may well be an issue that will be addressed in Lord Gill's imminent Scottish Civil Justice Review. However, it may cut both ways. It is probably more common that cases are defended without merit than raised by party litigants for frivolous or vexatious reasons."

In the proof leading to last week's judgment, Mr McNamara acknowledged that, representing himself he may not have presented legal arguments coherently or convincingly but insisted he had valid issues to pursue. He also pointed out that he had fully paid any costs awarded against him. Both points were acknowledged but not seen as sufficient to allow him to continue.

Mr Frost, however is entirely unrepentant about the conduct that led to him being named as vexatious litigant. "What little respect I had for the Scottish Judiciary and legal establishment withered in my own Vexatious Litigant proceedings – many members of the legal establishment perceived the proceedings as no better than a kangaroo court. … Has the brand of being a vexatious litigant been a deterrent to third parties from seeking my services? Again the answer is no. Indeed to many it is seen as a badge of distinction."