Judge warns lay litigants about advice

by Ann O'Loughlin

A Court of Appeal judge has voiced concern and regret that some personal litigants are incurring more debt due to taking mainly incorrect advice from people with no legal qualifications and “no real understanding of the law or the rules of court”.

These advisors have no training, no professional indemnity insurance and are unaccountable for any advice they give, “regardless of how reckless or wrong it might be”, Ms Justice Mary Irvine said.

While advice from non-qualified advisors was given in many instances, as was likely in the case before her, in the genuine belief it would benefit the recipient, her experience was the advice “is rarely, if ever, correct”.

“Day in, day out, this court sees lay litigants pursue appeals and applications which have no prospect of success.” The court usually had little option but to award costs against such litigants “thus pushing them further and further into debt.”

This was “particularly upsetting” where a litigant who had suffered serious financial loss but may still have some assets to give them “some degree of comfort” saw those “lost to bills of legal costs unnecessarily incurred as a result of the pursuit of ill advised and untenable claims, applications and appeals”.

Her remarks echo similar concerns of several High Court judges, made in a context of increasing litigation by litigants in person.

Ms Justice Irvine made her comments in a Court of Appeal judgment yesterday (Tues) dismissing all grounds of a man’s appeal over a High Court October 2016 order striking out his action as bound to fail and an abuse of court process.

She also upheld the High Court’s orders restraining the man bringing any further action arising from the same matters unless he has got court permission for such action.

The man had appealed the High Court’s decision striking out his proceedings against Danske Bank and a receiver appointed by it over various properties of his in an effort to recover a €1.4m judgment. He also sued auctioneering firms engaged to market and sell the properties.

Giving the appeal court’s judgment, Ms Justice Irvine said the 2016 proceedings essentially made the same claims as in earlier proceedings by the man in 2014 which were rejected by the High Court and Court of Appeal.

While the High Court was correct to dismiss this 2016 case as frivolous and vexatious, it is important to record those words have a particular meaning in a legal context, she said. The courts used the terms frivolous and vexatious to denote cases with no prospect of success.

Nobody would suggest a party such as this man, who has lost a lifetime’s savings after several decades of hard work, should have their case termed frivolous unless it is clear that term, in a legal context, means unjustifiable in the relevant circumstances, she said.

Because the central issues had already been decided against him, this case was also bound to fail and an abuse of process.

It is regrettable, after 30 years hard work and with his health deteriorating, the man’s assets are being sold to meet his liabilities to Danske and he was undoubtedly sincere in concerns expressed to the court, particularly his fear his properties may be sold at an undervalue, she said.

The man was “always courteous and direct” in his dealings with the court but should stop litigating about his properties, having been afforded every opportunity to make his claims, all of which had been rejected, she held.

Due to deteriorating health, the man was unable to make oral submissions in the appeal and another man assisting him had not sought to argue these proceedings were not in substance the same as those unsuccessfully litigated previously, she added


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