The phenomenon of the obsessive litigant

family law

Every family lawyer who has practised for any length of time will have come across it: the litigant who is so obsessed by their case that they embark upon a course of continuous harassment of all who stand in the way of the achievement of their aims, including the other party, their lawyer and even the court itself.

I suspect that most obsessive litigants are driven not just by the perceived righteousness of their cause, but also by simply having too much time to convince themselves of that righteousness (and that everyone else is against them). This encourages them to devote that time to a ceaseless campaign in pursuance of their aims, blind to the fact that they are actually doing great damage not just to others, but also to their own cause.

The latest example of this phenomenon is the case Akester v Fitzgerald, in which one of the ‘victims’ of the obsessive litigant was no less than the President of the Family Division himself, Sir James Munby. As we will see, the obsessive litigant is an extremely tiresome creature, who causes their victims to waste an inordinate amount of precious time that could be far better spent doing more productive things.

This judgment in Akester v Fitzgerald doesn’t really go into the details of the case (if you want those details there are two earlier judgments that you can read, including one that I have referred to here previously), but the following facts, including examples of Mr Fitzgerald’s behaviour, will give you a flavour.

Mr Fitzgerald is actually involved in two pieces of litigation: one relating to financial remedy proceedings brought against him by his wife, and another in the Court of Protection, relating to his aunt, who is a patient whose affairs are under the control of the Court of Protection.

In the Court of Protection proceedings the President saw fit to impose a civil restraint order restraining Mr Fitzgerald from issuing claims or making applications in any court “concerning any matter involving or relating to or touching upon or leading to the proceedings in which this order is made or the subject matter of or any application or proposed draft application therein.” The effect of the order was that, for a period of two years, Mr Fitzgerald could not make any such claims or applications, without first obtaining the permission of the court. The order was made because of what the President called Mr Fitzgerald’s compulsive desire to litigate, including making at least 23 applications to the Court of Protection and bombarding “all and sundry” with an “enormous number of emails”. Making the order, the President said:

“Those who have been harried by Mr Fitzgerald are entitled to be protected. The court is entitled to protect itself, its processes and, indeed, other litigants from having so much of its time taken up – wasted – by Mr Fitzgerald.”

Undaunted, Mr Fitzgerald then made an application to revoke two orders made by the President in the Court of Protection. Obviously, the application was struck out, because Mr Fitzgerald had not obtained, or even sought, permission to make it.

But such setbacks do not deter the obsessive litigant. Mr Fitzgerald then sought to use the financial remedy proceedings, to which the civil restraint order did not apply, as a ‘back door’, by making an application in those proceedings asking the President to stay execution of two paragraphs of an order made in those proceedings pending directing a hearing in his court of the Court of Protection proceedings “at which he revokes on reconsideration” his two orders mentioned above, and refers a solicitor involved in the proceedings to the Attorney General for committal for contempt of court. By way of encouragement to the President the application was accompanied by an email from Mr Fitzgerald warning the President that:

“Failure to list a hearing of your own motion as requested would strongly suggest that you are not fit to be President of the Court of Protection.”

Needless to say, the application got short shrift from the President, who dismissed it, saying that it was “misconceived and totally without merit”. He also said that Mr Fitzgerald’s “attempt to ventilate these matters by application in the Family Division” was an abuse of process. Mr Fitzgerald could not evade the requirement of the civil restraint order “by attempting to make a spurious link with the proceedings in the Family Court”.

As to Mr Fitzgerald’s desire to see the solicitor committed for contempt of court, the President repeated the strong words he used at an earlier hearing:

“Mr Fitzgerald’s application is, in all its aspects, misconceived, devoid of factual merit, in major part legally groundless and totally without merit. His allegations against [the solicitor] are scurrilous, fatuous and should never have been made. His application for her committal is a farrago of nonsense.”

Mr Fitzgerald also made allegations against two other solicitors who had the temerity to play a part in the cases in which he was involved, leading the President to comment:

“It will not have escaped notice that Mr Fitzgerald is making allegations of the utmost seriousness – contempt, dishonesty and attempted fraud – against three different solicitors. These allegations, largely un-particularised and, so far as the material Mr Fitzgerald has chosen to put before me allows me to judge, entirely devoid of merit, are scurrilous. Their pursuit in the manner in which Mr Fitzgerald has chosen to proceed is the plainest possible abuse of process.”

Finally, as to Mr Fitzgerald’s warning to him, the President remained philosophical:

“It is for others to judge whether my decision, as Mr Fitzgerald would have it, shows my unfitness for office or impacts adversely upon the reputation of either the Central Family Court or the Family Division. I shall continue to do my duty whatever insults Mr Fitzgerald may continue to throw at me.”

I don’t think that the obsessive litigant is a phenomenon unique to family law, but certainly family law issues, being so deeply felt, are more likely to give rise to the phenomenon. As indicated at the beginning of this post, I certainly came across it many times when I was practising. A typical scenario would be the party on the other side of the matter from my client who, without a lawyer (who would try to thwart them by discouraging them from doing what they thought was best), would constantly bombard me with lengthy, usually handwritten, missives. These would appear on my desk on a virtually daily basis and, as the President said, would take up enormous amounts of my time to decipher and respond to. Most of the contents of these missives would, of course, be of little or no real relevance to the issues at hand.

There is a simple moral here: no matter how hard done by you feel regarding the progress and outcome of your case, you will not be doing yourself any favours by embarking upon obsessive litigation. Your achievement, apart from the damage to yourself, will be to annoy everyone else involved in the litigation and to run up a succession of failed applications, together with the inevitable orders for you to pay the costs of those applications.

The full report of Akester v Fitzgerald can be found here.

Photo of the Royal Courts of Justice by Ronnie Macdonald via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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14 comments

keith - November 24, 2016 at 4:35pm

Did it not occur to you they might simply be fighting for Justice in a court system the general public have no faith in and by and large are very suspicious of.

Reddit Seenit Dunit - November 24, 2016 at 5:40pm

I tend to agree with Keith — in a GENERAL way.

In my view, because the law takes no account of professional SCAMMERS (of which there have been quite a few in the area I live — I got that from one of the lawyers who has had to deal with a number of them!) it is clearly unfair, as “the system” actually supports them, and never, ever, undermines them. THAT, I think, is worth protesting about. It is a very well known fact that some laws only get changed by people protesting — demonstrating, “not putting up with it”….

Let us be clear here — I am not talking about plain vanilla “gold diggers” — there have always been those. No, I am talking about those who, “with malice aforethought” (and often with the aid of the Internet) set out to catch a romantic fool, in order to divest him of a large part of his assets, after a few years — ie. just biding their time till they are ready to pounce… with a sudden divorce petition. Sound implausible? If so, only because they are, admittedly, a very small percentage of those seeking a “marriage” (in those cases, of convenience — theirs!). And therefore most people are probably unaware of them — but they do exist, sadly very much so.

Now, if the law finally became “officially aware” of these crooks (because that’s what they are, no less) then perhaps there would not be quite so much excessive litigation, by men (it is most usually, but not exclusively, women who are the scammers) to TRY to right the wrongs done in court — in the name of (blind) justice. Not that I am suggesting for one moment that continuous litigation does anyone any good; indeed, I can agree with John that it must do a lot of harm.

But the line between sensibly fighting for true justice, and foolish repetitive litigation may sometimes be a fine one.

Although, patently, not in the case of this “Mr Fitzgerald”.

He’s simply out of touch.

Jo Archer - November 25, 2016 at 9:22am

This joker sounds like a real pain in the butt, but I think it is worth mentioning that some unscrupulous solicitors will attempt to portray an applicant as vexatious in order to help a defendant who is absolutely determined to do nothing for their child until and unless the court orders it and even then the applicant is forced to make further applications to enforce those court orders.

It is quite wrong to use the number of applications/hearings as an indicator, on its own, of an ‘obsessive’ litigant. There doesn’t appear to be a similar mechanism for sorting out a defendant who is wasting court time and an inordinant amount of public money. Just thought I would mention it.

Eyes Wide Open - November 25, 2016 at 6:34pm

I agree that “It is wrong to use the number of applications or hearings as an indicator of an ‘obsessive’ litigant.”

In fact, an extremely — and justifiably — aggrieved litigant just might not have the MONEY to fight what he (or she) believes to be an entirely just cause.

Does this mean that they have really “seen the light” and accepted the “justice” that was handed out? No, they have seen how the system was stacked against them. Their lack of litigation only reflects just how difficult it is to get true justice, sometimes.

It does not mean that one can assume that justice was done. Far too many people, especially those never involved in divorce or litigation — or who have never actually observed the conduct of criminal cases, for that matter– naively assume that justice WILL be done.

Yes, most likely, it will be.

Mostly.

Ann Marie Mangion - November 29, 2016 at 5:35am

Excellent article! In my years of practice I’ve come across obsessive litigants. Unfortunately their continuous tireless assault is always interpreted negatively. It seems that the majority of obsessive litigants were perpetrators of domestic violence. Their continuous onslaught of applications including against the opposing lawyer is just another tactic of intimidation.

On the other hand, as a family lawyer, I’ve seen genuine cases who were being constantly harassed out of court by the opposing parties with the consequence of having to file a number of applications to make things right,

Richard - December 31, 2016 at 4:55am

I love the way your anecdotal account is not substantiated by any evidence or statistical analysis or indeed anything. You don’t even quantify ‘many’ in comparison to those who are not obsessive in your eyes. I work as a lay advocate for a charity and I dare say I see just as many cases as you do and just as many outbursts of emotion but i can tell you the motives you attribute to this are wholly wrong. I have never seen anyone have fun in a family court. It is an utterly dehumanising and demoralising nightmare for all litigants. The reason they fight tooth and nail is because they are not receiving justice. If you think any parent who cares for their child is simply going to give up and roll over you are dreaming. I have no doubt you may view their conduct in the court as obsessive and inappropriate but parenthood is obsessive by nature and while you may live in court they do not. They have no clue how to condut themselves and simply martial whatever arguments they can as best they can. Seriously I think you should be ashamed of sneering at them. I;d love to see how you perform under equal stress out of your environment and equally baffled as they are. Seriously get over yourself.

Leeanne - December 28, 2016 at 6:55pm

I see the man’s pain. A court , nyas and numerous barristers and solicitors that think emotional abuse to a child is not worthy of any disorder , seems to be the norm . Something nyas say can be remedied with a cuddle and not even putting a prohibited steps order in place after a ‘responsible ‘ parent admitted driving over 100 mph road raging and swearing with children screaming and crying. Judge agreed access with no bundle at a appeal , then was granted again with another judge . Note I had to appeal to high court to get the driving covered ! . To name one lie by nyas would start me off on details of their cover ups , Twisting and manipulation , to get their result. When next at court my barrister bullied me to drop the appeal as emotional abuse does not warrant no access . She then screamed constantly across the courts reception in front of my ex , nazi ex army officer . The whole child proceedings system is a sham , and I constantly get threatened with a section 37 rather than court and nyas look at the merits of my evidence , as they are not interested !! 13 years of hoarding , controlling, abandonment, racial abuse, classism , delusions of grandeur and obsession shopping and mannerisms mean there is no personality dis-order , only that I’m vexatious ! Not any benefit of doubt given to me or the children just wanting to be in a happy relationship not financially cohesive, or mentally depressive and surpressive !
This is maybe why the man can be confused with obsessed . Because like me he may have been so exhausted with ‘system’ because regardless of how our family assessments come out , when I have done money I will be taking nyas and their lying scheming. Advocacy to court myself !! I am so over being told I’m giving lip service that I’m ready to give the one finger service in utter frustration. Never wanted kids to have no relationship but I will not allow that self indulgent narcissistic bully to hurt our children anymore !! Even complained to nyas who said bring it up in court . So I have but court has refused to deal with it until cross examination !!! To which it is too late , and nyas continue their lying , omitting facts and utter blinkered view of the children’s accounts and my evidence . Ashamed of our court system ! It’s pathetic

Kenneth Lane - December 28, 2016 at 7:08pm

The phenomenon of the so-called obsessive litigant is in many respects created by the Family Court. How so?
It places weight on recommendations by cafcass, regardless of how untrue, inaccurate or misleading such reports might be – all too often resulting in needless child-parent severence.
This debacle has been preserved and concealed from public scrutiny by the secrecy of the Family Courts yet there can be no benefit from needless manufacture of one-parent families.
Parents applying for child arrangements find simple disputes over quantum needlessly protracted for months or years due to Cafcass systemic failure. For years cafcass predecessor lied about having guidelines on quantum in the median case yet MPs discovered this was untrue via Hansard (Parliamentary questions). It transpired that all such recommendations were based on whim. Deficiencies in training also emerged – staff determining childrens futures had no training in parental alienation, that cannot be other than a common factor according to leading barristers Willbourne & Cull.
Although FCWS was hurredly disbanded to avoid a scandal, Cafcass has inherited the same procedural deficiencies. Changes promised amounted to changing the name over the door.
As courts remain inconsistent; unwilling to enforce their own Orders where breached; relying on misleading reports that are rarely challenged; with no proper complaints procedure – any ‘good enough’ parent applying for child arrangements is likely to be branded a ‘vexatious litigant’ for seeking to parent his or her child beyond separation.
Where can you verify that the above is true?
Ask cafcass for their quidelines on quantum apportioning a childs time in the median case; and training in parental alienation; the duration of training; and how it is assessed. Despite being the main area of their work these key elements DO NOT EXIST. And therein lies the scandal.
According to a recent Centre of Social Justice report, UK has the highest child-parent severance rate. Conversely our Scandinavian neighbours have the lowest. In fact they are deemed almost ‘court phobic’. Latterly, they enshrined in statute the guidelines on post separation decades ago.
In this vien, one senior judge chairing a conference on ‘early intervention’ is on record as stating that its about time we took off our blinkers and learnt from other jurisdictures that are already doing so well.
It has to be said that the Courts do not help themseves where they are seemingly unwilling to enforce their own orders – so, against a backdrop of procedural neglect concealed behind closed doors it is easy to see how a parent may have to make far too many applications in order to continue to parent a child following separation.
Conversely, a knock on effect of installing the necessary ingredients (above) would not only benefit children in separating families via early resolution but would result in major savings in costs and time.

So, is the President of the Family Division ready to grasp the nettle and make these essential long overdue changes?
Who knows. But what is clear is that the Family Court system in its present form, with reliance on untrained Cafcass staff for its recommendations, has not only failed vulnerable children and families – but has served to undermine the worthy spirit of the law whom it is beholden to protect.
Addressing the systemic failings would introduce an element of quality control separating cases that might be ‘vexatious’ from those that are not.

Simon - December 28, 2016 at 8:03pm

Every L.I.P who has fought for their children for any length of time will have come across it: the family laywer who is so obsessed by their case that they embark upon a course of continuous harassment of all who stand in the way of the achievement of their aims, including the other party, their lawyer and even their children themselves.

Richard - December 31, 2016 at 4:45am

I am deeply disturbed by the tenor of this article. Sadly it reflects just how out of touch with reality many practitioners are and it shocks me coming from such a reputable and highly esteemed source. The natural human responses are fight or flight and litigants in the Fam Div cannot flee. They are bound to pursue the interests of their child. The only other option is to turn their back on them. Now as you know courts consider two factors at trial being matters of fact and points of law. The facts have to be applied to law so I may for example be able to prove that you pick your nose but picking your nose is not unlawful so proving it has no value at law. However self litigants know all about the facts and almost nothing of law so they naturally proceed down paths to nowhere trying to prove that he or she is lying or is a bitch etc. They are utterly confused and terrorised by a remorseless system that drives many prents to suicide and clinical depression. The next time you go to the Central Family Court just a few doors down from your chambers take a look at the stairwell. It has suiicide traps to prevent humpers from taking their lives. This is becuase the Fam Div knows precisely the deadly and harmful effect they have on people who are not criminals. They are simply parents pursuing what they believe to be the true paramount interests of the Child. When lawyers are driven to suicide by self litigants I think you may have something to complain about. However until then you’re not fit to stand in the shadow of the many parents I see pushing rocks up hill no matter how artlessly they may present their arguments. For you it is merely an irritation that some disrupt the business as usual atmosphere you revel in and detract from pure law. However this failing system is not there for your convenience or sellf gratification. It is intended to protect children and it fails abysmally. One of the very reasons it fails so poorly is indeed the business as usual. Anyone who works in the Fam Div and has convinced themselves that they do a good job or contribute to a greater good is seriously self deluded. It never fails to amaze me how so many learned and erudite people can get it so wrong. Let he who is without sin cast the first stone.

lee - December 31, 2016 at 11:01am

I have spent days looking into 12J domestic violence directives . These have not been followed by our so called advocate . Define the meaning of advocate . As they should not be allowed to be called this .
The so called Advocate can only but follow the directive that the child should not be separated from the abusing parent . Everything is done in the best interest of the child . However why interview the children as even if they are grammar school level they do not have a voice because of their age .
Why spend tax payers money interviewing the children . The main error of law i want to address and this would actually save time, tax payers money , and a great deal of heart ache and yes even depression, suicide and the exhaustive threat of SECTION 37 , SECTION 37, SECTION 37, is that there is absolutely NO COMPLAINTS PROCEDURE IN COURT FOR CAFFCASS OR NYAS .
You write to them, they say address it in court . You address it in court and it is thrown out and the so called ADVOCATE who is not an advocate but a Biased, tunnel visioned, lying, manipulating, party still continues to represent your child . Although actually you have full evidence of their lies and your child is so upset and traumatised that they repeatingly DO NOT LISTEN to the kids feelings and wishes . Every case is branded with ‘Section 37’ , If you do not comply, etc etc and putting the parent in a position between prison, alienating their own child, and even wondering why you ever felt guilty for putting up with abuse when in the relationship , to flea it to then be crucified when you want to do the right thing and stop the harm not only to the children but to yourself . Please read J MUNBY 25th june 2015 speech about children needing a voice in person . This is the way forward if they are that unhappy with this system as my children are . Don’t accuse the parent of ‘lip service’ because you won’t get the results your installed to get , no matter what ! . This is what Munby wants but i think we should all start with the fact that the court is putting a great deal of weight into organisations that tell the parties that they will be an advocate . This totally misleading me into thinking that they would listen to the children . Please note i do not want and never have wanted access to stop . I want domestic abuse recognised and a way forward that would give the children a right to a normal family life . Not to ‘FORGE ON’ and brush the issues under the carpet and then force the litigation to go on for years and years as the pattern of incidents that was reported in the first place have been ignored., Not recognised, not investigated adequately, and certainly the long term effects not looked at by a biased organisation . CHANGE is needed . The proceedings are private for a reason and that is to not open up the true, tainted flaws in family proceedings . SHAM

JamesB - December 31, 2016 at 12:45pm

I agree with Kenneth, Simon and Richard. I found everything Kenneth said to be spot on in my over 50 appearances in court.

JamesB - December 31, 2016 at 1:01pm

The name calling of fathers for trying to see their children more is out of order and needs to be stopped asap. Despite what the nutter system says it is good for children to see their father just as it is good for a child to see his or her mother.

The question for me is it it normal for a mother and father to cohabit for the duration of their child or children’s childhood. I haven’t seen that much given the mess these courts have made of the indigenous population’s families. They are best avoided as is cafcass whenever as much as possible.

JamesB - December 31, 2016 at 1:06pm

It may not be the norm anymore, with 50 percent of children born to cohabiting parents, three quarters of which at least split and of the other 50 percent half of them splitting. In maths that makes three quarters of us without our parents living together.

It may be the normal but it is not best, I think better to work on finding a good partner and staying together.

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